
             _______________________________________________________
             |                                                     |
             |       PROGRAMMING FREEDOM  -  online edition        |
             |              league@prep.ai.mit.edu                 |
             |                                                     |
             |          June 1992  -==-  Volume I  Number 4        |
             |                                                     |
             |           The Electronic Newsletter of              |
             |        The League for Programming Freedom           |
             | 1 Kendall Sq #143, POBox #9171, Cambridge MA 02139  |
             |  Editor: Spike R. MacPhee (spiker@prep.ai.mit.edu)  |
             |Assistant Editor: Andy Oram (oram@hicomb.hi.com)     |
             |     Reproduction of Programming Freedom via all     |
             |            electronic media is encouraged.          |
             |     To reproduce a signed article individually,     |
             |       please contact the author for permission.     |
             |_____________________________________________________|

                      <><><><><> TABLE OF CONTENTS <><><><><>

       An analysis of the Congressional OTA Report - Simson Garfinkel
           LPF publicity: Cons, media mentions, & volunteer efforts
           Patent law "harmonization" Congressional bills introduce
        LPF News - 50% membership increase; voicemail down temporarily
       Quorum Files Declaratory Judgment Action Against Apple Computer
             MacBlaster game, item noticed by Christopher Glaeser
                     LPF email lists - what they are for
                         Apple-Microsoft/HP suit news
              LPF Boutique: Materials Available from the League
                                    --==--

     <>An analysis of the Congressional OTA Report - Simson Garfinkel<>

    Report on "Finding A Balance":, the Congressional Office of
    Technology's 1992 report on "Computer Software, Intellectual Property
    and the Challenge of Technological Change."

    On May 1 the Congressional Office of Technology Assessment (OTA)
    issued its long-awaited report on the impact of copyright and patent
    law on computer programs.  This 228-page report is the most
    comprehensive description to date of the issues of primary importance
    to The League.

    The OTA's mission is to analyze policy questions pertaining to
    technology in an objective and bipartisan way - not to make policy
    recommendations.  For this reason, the OTA's report does not conclude
    if patents and copyrights are "good" or "bad" for software or the
    country as a whole: it simply provides an analysis of the current
    state-of-affairs and outlines policy options available to Congress.

    The OTA's report is therefore likely to be at the heart of any future
    action taken by Congress on these matters.

    "Finding A Balance" is the last in a series of reports that OTA has
    been issuing on intellectual property law.  Other reports have looked
    at the electronic redistribution of information ("Intellectual
    Property Rights in an Age of Electronics and Information," OTA 1986),
    the role of patents in the field of biotechnology ("New Developments
    in Biotechnology: Patenting Life - Special Report," OTA 1989), and
    the impact of home copying ("Copyright and Home Copying: Technology
    Challenges the Law," OTA 1989).

    THE LEGAL ENVIRONMENT

    Until now, the ways that copyright and patent law has been applied to
    different parts of a program in different ways.  Nearly all of these
    determinations have been made in the courts.  Most observers feel that
    the courts are the wrong place for these decisions to be made.
    Indeed, different courts around the country have issued different,
    often contradictory, rulings about the extent to which copyrights and
    patents affect the writers of programs.

    The problem, says OTA, is that there are elements of computer programs
    that are like literature, and apparently covered by existing copyright
    laws, while there are other elements that smack of invention and
    should therefore be covered by patent laws.  OTA points out that
    software is the only thing in American society that can be covered by
    copyright, patent and trade secret laws at the same time.

    The report focuses on four main elements of computer program:

         * The program code itself
         * The user interface design
         * The program's external design
         * The program's function

    It then analyzes how copyright and patent law are affecting the
    development of programs.  Finally it concludes with possible policy
    options for Congress.

    APPROACHES

    There is no question today that copyright and patent laws are in a
    state of flux with respect to computer programs.  But there is a real
    question about the way that the problem should be addressed.

    Today there are two schools of thought in the United States of how the
    situation should be fixed: one school of thought is that Congress
    should clarify the ways in which copyright and patent law affects
    computer programs. The second school holds that Congress should create
    a new "sui generis" approach that deals specifically with computer
    software.

    The OTA disagrees with the statement that "the majority of legal
    experts and firms in the industry take the position that existing
    structures like copyright and/or patent are adequate to deal with
    software."  Case law will evolve in the courts, OTA says these experts
    contend, and "sui generis approaches risk obsolescence as the
    technology changes."

    Instead, OTA says, "despite the advantages, there are questions as to
    whether this process of accommodation can - or should - continue
    indefinitely.  With respect to software, there may be a point where it
    becomes preferable to complement or substitute ... the existing
    structures, rather than extend the scope of copyright to fit certain
    aspects of software," (p. 8).

    COPYRIGHT

    OTA first tackles the question of copyright.  The issue of primary
    importance, says OTA, is to prevent the wholesale pirating of
    completed computer programs.  The straightforward way to do this is to
    treat a program as a literary work.  This approach is well-established
    in both US and International law.  Nevertheless, says OTA, there is
    still a great deal of software piracy - particularly overseas.

    Beyond the question of verbatim copying, there is a "fuzzy" line as
    more and more aspects of a program's design and function are covered
    by copyright law.

    One option for Congress, says OTA, would be not to act and let these
    matters be resolved in the courts.  A way to speed that process would
    be for congress to establish a special "fast track" inside the court
    system for intellectual property litigations.

    If Congress does want to do something, one of the first things that it
    could do, says OTA, is to clarify the scope of copyright to either
    specifically include or exclude "one or more aspects of software, such
    as:"

         * computer languages
         * algorithms
         * design specifications
         * user interfaces.
         * other interfaces.

    Congress could do this by:

         * Expanding upon the Copyright Law's current language on "subject
    matter of copyright" by saying that the above are or are not
    copyrightable subject material.

    Another option, says OTA, would be for congress to exempt computer
    programs from copyright and make them subject to new "sui generis"
    laws.

    Although not an issue of primary concern to the league, the OTA report
    also covers the question of reverse engineering.  OTA calls upon
    Congress to specifically address the question of reverse engineering
    -- either through legislation or cooperation with industry -- and
    clarify whether reverse engineering is considered "fair use" under the
    copyright law.

    OTA suggested that Congress might want to develop a technique for
    giving "limited rights for incremental software advances that would
    not be patentable or for aspects of program functionality that fall
    outside copyrightable subject matter."

    PATENTS

    Computer-related Patents pose a special problem to the PTO, OTA says,
    because the Supreme Court has ruled that mathematical algorithms may
    not be patented but processes - including processes that involve
    computers - may be patented.

    "The long-term question of whether patent (or patentlike) protection
    for computer processes and/or algorithms is socially desirable is
    separate from the related question of how well current U.S. Patent and
    Trademark Office (PTO) procedures are working now," (p. 10).

    On the question of whether or not the PTO procedures are working now,
    OTA concludes that they aren't.

    OTA states that the biggest problem preventing the PTO from carrying
    out its current mission is a problem of dealing with prior art.  PTO
    is forbidden from issuing patents unless they are "non-obvious" to
    practitioners in the field and "novel" - that is, have never been
    implemented before.

    The LPF believes that they are mistaken--while this problem does
    contribute to bad consequences, even a perfect awareness of the prior
    art would at most eliminate a fraction of them.  Rms has written an
    article relevant to this that was in Computerworld and it will be in
    our next issue.

    Because of PTO's problems, OTA says, patents have been issued that are
    neither non-obvious nor novel.

    The PTO has "serious" problems, OTA says, including:

         * Examiner training and turnover
         * Length of pendency periods (from filing to issuance) for
            patent applications.
         * The backlog of applications
         * The quality and extent of the prior art database.


    PTO's problems quickly become those of practitioners in the field,
    says OTA, because they create an uncertain economic environment in
    which to operate.  At the root of this uncertain environment is "the
    long timelag between patent applications and issuance, compared to
    fast-moving software life cycles." (p.7) Programs can be conceived,
    developed and brought to market by one company between the time that
    another company files for and is awarded a patent.  OTA calls such
    patents "land-mine patents."

    To solve these problems, OTA says, the patent office could "fill in"
    its database of both patent and non-patent prior art.  OTA recommends
    that the PTO could revise its electronic search system so that
    examiners can easily pull from the database all software-related
    patents (currently, OTA says, this is impossible to do).  PTO could
    reclassify its patents in the computer arts.  The OTA recommends that
    PTO may want to perform this reclassification and filling-in in
    conjunction with the computer industry.

    One way to eliminate "land-mine patents" - patents that are filed
    when the technology is new but granted many years in the future -
    suggests OTA is to require the PTO to publish all software-related
    patent applications published after 18 months, whether or not the
    patents were issued.

    * long-term issues

    The OTA report is much hazier on whether patents for software are a
    good or bad thing.  "Some members of the software and legal
    communities believe that software-related patents will tend to stifle,
    rather than encourage, technological progress," says OTA.

    In one footnote, OTA reprints a letter from Robert S. Boyer (Professor
    of Computer Sciences, University of Texas, and an LPF member)
    recommending that "patent law should be clarified to the effect that a
    patent is never infringed merely by the use of software on a
    computer."

    OTA notes that "protection of software-related inventions and
    algorithms by patent is a recent development and is controversial."
    OTA states that the meaning of the term "mathematical algorithm"
    (which PTO is forbidden to patent) "has been the subject of
    considerable discussion and debate."  Algorithms are not
    "mathematical" if they can be stated in terms of operations on things
    in the "real world."

    "Over the past decade, patents have been issued for software-related
    inventions such as":

         * linear-programming algorithms
         * spell-checking routines
         * logic-ordering operations for spreadsheet programs
         * brokerage cash-management systems
         * and bank-college savings systems

    "To some industry observers, there appears to be variance--or, at
    least, uncertainty on their part--in how PTO guidelines are being
    applied during examination," (p. 32).

    OTA doesn't reach a conclusion; instead, it always falls back on the
    technical problems currently facing the PTO in deciding whether or not
    software is "novel" and "non-obvious."

    OTA asked PTO to walk it through a typical software-related patent
    application.  PTO refused.

    OTA identifies three different policy issues regarding software
    patents:

    * Statutory Subject Matter for Patents

    "To reduce uncertainties and clarify legislative intent, Congress
    could explicitly address the question of patentability for
    software-related inventions and for certain algorithms," (p. 32).

    This would be a far more difficult problem than defining the scope of
    copyright, says OTA.  "The term 'software patent' does not correspond
    to any PTO category," (p. 32).  Nevertheless, Congress could:

         "Option 2.1: Refine the statutory definition of patentable
    subject matter to provide guidance to the courts and PTO.  Legislation
    might address the extent to which processes implemented in software or
    "mathematical algorithms" are or are not statutory subject matter.
    Legislation might also address the issue of special exemptions, such
    as for research and education.

         "Option 2.2: Exclude software-related inventions and/or
    algorithms from the patent law and create a special, sui generis
    protection within a patent framework for some inventions.  This latter
    might have a short term, lower criteria for inventiveness, and/or
    special exemptions from infringement"

    * Prior art and Examination Quality and Timeliness

    On the question of prior art, OTA says that the database of prior art
    must be filled in.  They suggest:

         "Option 2.3: Encourage establishment of a supplementary
    repository of nonpatent prior art, either public or private."

    OTA also outlines three ways that PTO could improve its internal
    process, including developing a new automated program for
    cross-indexing and retrieval of patents, improved training and
    funding, and increased input from the software community.

    SUMMARY

    Instead of seeing software patents and look-and-feel copyright as an
    issue of free speech, OTA's report takes a very conservative approach:
    the current system isn't working in a fair or uniform manner.

    As the title of the OTA's report indicates, the agencies biggest
    concern is finding a balance and presenting options for congress.

    This report presents Congress with many policy options that are
    diametrically opposed.  For example, it says that Congress could
    specifically exempt programs from copyright or it could strengthen
    copyrights on programs.

    To order your own copy, send $11.00 (international customers add 25%)
    to:

             Superintendent of Documents
             P.O. Box 371954
             Pittsburgh, PA 15250-7954
    fax:     202-512-2250

    Payment may be in the form of check, payable to Superintendent of
    Documents, GPO Deposit Account #, or VISA or MasterCard (be sure to
    include your expiration date and authorizing signature.)
                                    --==--

      <><> LPF publicity: Cons, media mentions, & volunteer efforts<><>

    Send in any LPF mentions or volunteer efforts and we'll list it.

    April 13: Unix User's Association of Southern California - software
    patents speech by Paul Eggert (eggert@twinsun.com)

    April 27: Computing Professionals for Social Responsibility, LA
    Chapter - software patents speech by Paul Eggert.

    April 27-30: XWorld Conference and Exhibition, New York - LPF
    materials brought by David B. Lewis, uunet!craft!david@uunet.uu.net
                                    --==--

       <><>Patent law "harmonization" Congressional bills introduced<><>

    Electrical Engineering Times, 4/27/92, p. 32, has an article on bills
    introduced into Congress for patent law "harmonization".  These are
    supposed to bring us in line with the rest of the world.  The major
    changes are:

        1: We change the law from "first-to-invent" to "first-to-file".
           Apparently some lip service is being paid to the notion of
           protecting an original inventor from being shafted by a
           quick filer, but exactly how this will be managed is not
           clear.
        2: Patents will be make public 18 months after the application
           is received, instead of being help privately until being
           granted.
        3: The term would change from 17 to 20 years.  The term would
           start on the filing date instead of the date of issue.
        4: An expedited patent search system so invalid patent
           applications can be located before the application is made
           public in 18 months.

    The article doesn't even try to guess what the chances are of this
    bill passing, although it does say "Even though the U.S patent system
    seems to be the odd man out in the international arena, there is no
    huge pressure for change in the United States."  Sorry about that...

    Summary by Mark R. Nelson, 73650.312@CompuServe.COM 
                                    --==--

        <><><>LPF News - 50% membership increase; voicemail down<><><>

    The active membership, people who have renewed in the last year, has 
    increased from 450 at Christmas to 689 as of June first.  This is a 53%
    increase in less than a half-year.  Thanks to you all for the recruiting
    and publicity efforts that have made this possible.

    Our voicemail number is temporarily down; the subcontractor who
    provided voicemail service to our snailmail mailbox company abruptly
    went bankrupt; we are attempting to recover the number from them and
    provide more reliable service to you without obsoleting our stocks of
    LPF materials with the voicemail number on them.
                                    --==--

     <> Quorum Files Declaratory Judgment Action Against Apple Computer<>

    Lawsuit Seeks Relief From Apple Allegations Of Copyright, Patent
    Infringement - A press Release from Quorum Software Systems, Inc.

    Menlo Park, Calif., May 12, 1992 - Quorum Software Systems, Inc. today
    announced it has brought legal action against Apple Computer, Inc.
    (Cupertino, CA) to counter unsupported allegations of patent and
    copyright infringement.  Quorum's lawsuit stems from recent letters in
    which Apple accused Quorum of infringing its intellectual property
    rights, and revoked Quorum's privileges as an Apple Certified
    Developer.

    Additionally, the complaint seeks redress for Apple's accusation that
    Quorum, in helping independent software developers (ISVs) migrate
    their Macintosh-compatible applications to other platforms, induced
    those ISVs to violate licensing and confidentiality agreements with
    Apple.  Apple's assertion implies that developers have knowingly or
    unknowingly i He*~<_|Sk\@#1۽hx ?1zA"vG'(j$\?ЄJVfD6`0V2h&Ld    8vEf3L8lglv?Gq{˘ HevG     2u)2f~ٕ[$iwp
}4G     8QpHkF6
