www/philosophy trivial-patent.shtml

[Anatoly A. Kazantsev]

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Index: trivial-patent.shtml
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+<!--#include virtual="/server/header.html" -->
+
+<title>The Anatomy of a Trivial Patent - the GNU project - Free Software 
Foundation - Free as in Freedom - GNU/Linux</title>
+
+<!--#include virtual="/server/banner.html" -->
+
+<!-- 
+   Please ensure that you properly nest your tags.
+   If in doubt, use the w3c validator: this is strict xhtml.
+   Keep tables simple, and make sure they degrade properly.
+   Review the w3c accessibility guidelines when in doubt 
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+
+<!-- END FSFlinks -->
+          
+<!-- BEGIN content -->
+<h2>The Anatomy of a Trivial Patent</h2>
+
+<p>by <a href="http://www.stallman.org/";><strong>Richard 
Stallman</strong></a></p>
+
+<p>
+  <a href="/graphics/philosophicalgnu.html"><img 
src="/graphics/philosophical-gnu-sm.jpg"
+    alt=" [image of a Philosophical Gnu] "
+    width="160" height="200" /></a>
+</p>
+
+<p>
+Programmers are well aware that many of the software patents cover
+laughably obvious ideas. Yet the patent system's defenders often
+argue that these ideas are nontrivial, obvious only by hindsight. And
+it is surprisingly difficult to defeat them in debate. Why is that?
+</p>
+
+<p>
+One reason is that any idea can be made look complex when analyzed to
+death. But another reason is that these trivial ideas often look
+quite complex as described in the patents themselves. The patent
+system's defenders can point to the complex description and say, "How
+can anything this complex be obvious?"
+<p>
+
+<p>
+I will use an example to show you how. Here's claim number one from
+US patent number 5,963,916, applied for in October 1996:
+</p>
+
+<p>
+1. A method for enabling a remote user to preview a portion of a
+pre-recorded music product from a network web site containing
+pre-selected portions of different pre-recorded music products, using
+a computer, a computer display and a telecommunications link between
+the remote user's computer and the network web site, the method
+comprising the steps of:
+</p>
+
+<ul>
+  <li>
+    using the remote user's computer to establish a
+    telecommunications link to the network web site wherein the
+    network web site comprises (i) a central host server coupled to a
+    communications network for retrieving and transmitting the
+    pre-selected portion of the pre-recorded music product upon
+    request by a remote user and (ii) a central storage device for
+    storing pre-selected portions of a plurality of different
+    pre-recorded music products;
+  </li>
+  <li>
+    transmitting user identification data from the remote user's
+    computer to the central host server thereby allowing the central
+    host server to identify and track the user's progress through the
+    network web site;
+  </li>
+  <li>
+    hoosing at least one pre-selected portion of the pre-recorded
+    music products from the central host server;
+  </li>
+  <li>
+    receiving the chosen pre-selected portion of the pre-recorded
+    products; and
+  </li>
+  <li>
+    interactively previewing the received chosen pre-selected
+    portion of the pre-recorded music product.
+  </li>
+</ul>
+
+<p>
+That sure looks like a complex system, right? Surely it took a real
+clever guy to think of this? No, but it took cleverness to make it
+seem so complex. Let's analyze where the complexity comes from:
+</p>
+
+<p><i>
+1. A method for enabling a remote user to preview a portion of a
+pre-recorded music product from a network web site containing
+pre-selected portions
+</i></p>
+
+<p>
+That states the biggest part of their idea. They have selections from
+certain pieces of music on a server, so a user can listen to them.
+</p>
+
+<p><i>
+of different pre-recorded music products,
+</i></p>
+
+<p>
+This emphasizes their server stores selections from more than one
+piece of music.
+</p>
+
+<p>
+It is a basic principle of computer science is that if a computer can
+do a thing once, it can do that thing many times, on different data
+each time. Many patents pretend that applying this principle to a
+specific case makes an "invention".
+</p>
+
+<p><i>
+using
+a computer, a computer display and a telecommunications link between
+the remote user's computer and the network web site,
+</i></p>
+
+<p>
+This says they are using a server on a network.
+</p>
+
+<p><i>
+the method
+comprising the steps of:
+* a) using the remote user's computer to establish a
+telecommunications link to the network web site
+</i></p>
+
+<p>
+This says that the user connects to the server over the network.
+(That's the way one uses a server.)
+</p>
+
+<p><i>
+wherein the
+network web site comprises (i) a central host server coupled to a
+communications network
+</i></p>
+
+<p>
+This informs us that the server is on the net. (That is typical of
+servers.)
+</p>
+
+<p><i>
+for retrieving and transmitting the
+pre-selected portion of the pre-recorded music product upon
+request by a remote user
+</i></p>
+
+<p>
+This repeats the general idea stated in the first two lines.
+</p>
+
+<p><i>
+and (ii) a central storage device for
+storing pre-selected portions of a plurality of different
+pre-recorded music products;
+</i></p>
+
+<p>
+They have decided to put a hard disk (or equivalent) in their computer
+and store the music samples on that. Ever since around 1980, this has
+been the normal way to store anything on a computer for rapid access.
+</p>
+
+<p>
+Note how they emphasize once again the fact that they can store
+more than one selection on this disk. Of course, every file system
+will let you store more than one file.
+</p>
+
+<p><i>
+* b) transmitting user identification data from the remote user's
+computer to the centralpply a very low standard when judging
+whether a patent is "unobvious". This patent might pass muster,
+according to them.
+</i></p>
+
+<p>
+What's more, the courts are reluctant to overrule the Patent Office,
+so there is a better chance of getting a patent overturned if you can
+show a court prior art that the Patent Office did not consider. If
+the courts are willing to entertain a higher standard in judging
+unobviousness, it helps to save the prior art for them. Thus, the
+proposals to "make the system work better" by providing the Patent
+Office with a better database of prior art could instead make things
+worse.
+</p>
+
+<p>
+It is very hard to make a patent system behave reasonably; it is a
+complex bureaucracy and tends to follow its structural imperatives
+regardless of what it is "supposed" to do. The only practical way to
+get rid of the many obvious patents on software features and
+business practices is to get rid of all patents in those fields.
+Fortunately, that would be no loss: the unobvious patents in the
+software field do no good either.
+</p>
+
+<p>
+The patent system is supposed, intended, to promote progress, and
+those who benefit from software patents ask us to believe without
+question that they do have that effect. But programmers' experience
+is otherwise. New theoretical analysis shows that this is no paradox.
+(See <a 
href="http://www.researchoninnovation.org/patent.pdf";>http://www.researchoninnovation.org/patent.pdf</a>.)
+</p>
+
+<!--#include virtual="/server/footer.html" -->
+<!-- BEGIN copyleft -->
+<div id="footer">
+
+<p><a name="ContactInfo"></a>
+   Please inquire about GNU by Email:
+   <a href="mailto:address@hidden";>address@hidden</a>, 
+   Voice: +1-617-542-5942, or Fax: +1-617-542-2652.
+</p>
+
+<p>Please send broken links and other web page suggestions to 
+   <a href="/people/webmeisters.html">The GNU Webmasters</a> at 
+   <a href="mailto:address@hidden";>address@hidden</a>, Thank you.
+</p>
+
+<p>Copyright &copy; 2006 Richard Stallman<br />
+  Verbatim copying and distribution of this entire article
+  are permitted in any medium provided this notice is preserved.
+</p>
+
+<p>Updated:
+  <!-- timestamp start -->
+  $Date: 2006/09/16 08:56:46 $ $Author: jimcrow $
+  <!-- timestamp end -->
+</p>
+</div>
+<!-- END copyleft -->
+
+
+<h5 class="netscape4">Translations of this page</h5>
+
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+
+<ul class="translations-list">
+<li><a href="/philosophy/trivial-patent.html">English</a></li>
+</ul>
+
+
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