From: Bill Stewart <stewarts@ix.netcom.com>
Date: Thu, 16 Jan 1997 17:36:14 -0800 (PST)
To: jim bell <jimbell@pacifier.com>
Subject: Re: RSA challenge: is it legal to try?
Message-ID: <3.0.1.32.19970116093545.0062ece0@popd.ix.netcom.com>
MIME-Version: 1.0
Content-Type: text/plain


At 08:13 PM 1/14/97 -0800, jim bell wrote:
>US.  Alone, that would have denied non-US patents to RSA.   However, such an 
>explanation grandly ignores the fact that computer software (let alone 
>mathematics in general) was not considered patentable ANYWHERE (?) before 
>public-key systems made their appearance in 1976.
...
>I'm still waiting for an "innocent" explanation for the US patent office 
>beginning to issue software patents.  I don't think there is one.

The first software patent was Dennis Ritchie's patent on setUID.
Computer security is one area that, if you're going to allow patents
on software at all (which I think are a bad idea, but that's politics),
are likely to yield novel processes that will benefit the public
if they're published.  If you want an "innocent" explanation,
it's that computers were finally starting to be affordable enough
and software to be portable enough that there was a software market
developing, and therefore there was money to be made (or stolen.)

Before the mid-70s, there wasn't really much software that wasn't 
either obvious to a skilled practitioner (hence non-patentable),
or else intimately tied to tweaky little details of some hardware product,
where the hardware is patentable and the manufacturer is perfectly
_happy_ to have everybody write non-portable code that locks you into
using a FooBar 9000, while letting them claim that this code lets
you run your applications 99.44% faster on the 9000 than on an IBM.
And most early software patent applications _did_ include descriptions
of some tweaky hardware implementation to make them fit better
into the Patent Office mindset.

Of course, the Patent Office, which didn't hire "software engineers"
for a long time, had entirely no clue about what was obvious to skilled
practitioners, so they've let all kinds of things be patented that
were widely used in the trade, like XOR cursors and online commerce.
But that's a flame for another newsgroup.

>It also ignores the strong likelihood that the reason for the Patent-Office 
>policy change (done, apparently, without benefit of a corresponding law 
>change) was because with public-key/RSA there was finally an example of 
>software the government wished to deny to the average citizen, 
>and the only mechanism (short of secrecy, which was broken) to do so 
>was to patent it.  

D,H,R,S, and A didn't _have_ to apply for patents....
With hardware security products, the NSA has the power to seize and
classify systems which are applying for patents, for no particularly
good reason, and they used to do it often.  For instance, there was
an analog scrambler for CB radios that got its patent applications
seized in about 1980.  And most software patent applications for
crypto have involved machinations to avoid getting trapped by this,
like publishing in foreign journals before submitting applications.

#			Thanks;  Bill
# Bill Stewart, +1-415-442-2215 stewarts@ix.netcom.com
# You can get PGP outside the US at ftp.ox.ac.uk/pub/crypto/pgp
#     (If this is a mailing list, please Cc: me on replies.  Thanks.)