From: Eric Hughes <hughes@soda.berkeley.edu>
Date: Sun, 2 May 93 10:40:04 PDT
To: cypherpunks@toad.com
Subject: PATENT: A legal way to use RSA!
In-Reply-To: <930501180040_76114.2307_BHA70-1@CompuServe.COM>
Message-ID: <9305021725.AA21192@soda.berkeley.edu>
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William Oldacre suggests just letting people roll their own encryption
packages.  Russell Brand exhibited a few relevant passages of the
patent law.  Allow me to make the argument clearer.

First, patent law covers all use, including personal use.  It would be
beneficial public policy to allow personal use broadly under statute,
but drawing the line between personal use and sole proprietorship is
difficult at best.  There are many cases where society might wish to
distinguish between profit and not-for-profit and personal uses, yet
however one looks at this, these can be difficult to distinguish at
their margins.  When, for example, does a hobby which turns into a
money making adventure actually become a business.  At the first sale?
At the first loss filed on Schedule C?  When specifically, might
patent licensure invoke?  Remember, this has to be a litigable
distinction.  For many of these reasons, all rights to patents are
vested in the patent holder.

Second, assume that personal use really was OK.  Then some people
really could build their own.  But you could even then sell kits,
because that would be tantamount to the completed object.  You could
sell all the parts, but you could agglomerate them into a single unit.
Big deal, you might say.  It is a big deal.  Most people, more that
99%, could not assemble a crypto system out of parts.  You would make
crypto protection available only to the programming elite.  This,
surely, is not my idea of a worthwhile end goal.

Patents are a restriction; they are designed to be a restriction.  We
can either use them by licensing them or go around them by not using
them but rather a substitute.  Any other way of dealing with them is
not generalizable to the public at large.  I am sympathetic to
personal and research uses of unlicensed patents, but my goal is the
whole world.

Eric