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Xref: sserve comp.org.eff.talk:9696 misc.int-property:736 comp.unix.bsd:7320 Path: sserve!manuel.anu.edu.au!munnari.oz.au!spool.mu.edu!uwm.edu!linac!att!ucbvax!virtualnews.nyu.edu!brnstnd From: brnstnd@nyu.edu (D. J. Bernstein) Newsgroups: comp.org.eff.talk,misc.int-property,alt.suit.att-bsdi,comp.unix.bsd Subject: Re: Patents: What they are. What they aren't. Other factors. Message-ID: <6581.Nov112.31.0292@virtualnews.nyu.edu> Date: 1 Nov 92 12:31:02 GMT References: <1992Oct28.112222.5170@netcom.com> <1992Oct28.153748.3758@murdoch.acc.Virginia.EDU> <1992Oct28.220811.27666@netcom.com> Organization: IR Lines: 46 So now we have two supposed examples of beneficial software patents: an unspecified Dolby patent (which I haven't seen, hence can't talk about), and the well-known RSA patent. A few people pointed out that the RSA patent *did not* benefit society. The inventors published RSA many months before applying for a patent, so the patent system obviously served no use as a publication mechanism in this case. The farfetched idea that ``the possibility of a patent serves as incentive to perform research'' cannot have been true for RSA: at least one of the inventors was under a government contract requiring him to publish all research results *without restriction*. So the patent didn't benefit anyone except its inventors. (All this was obvious at the time.) Furthermore, history shows that the inventors' company, RSADSI, has squashed at least three independent software packages, obviously to the detriment of everyone except RSADSI. In article <1992Oct28.220811.27666@netcom.com> mcgregor@netcom.com (Scott Mcgregor) attempts to defend the assertion that the RSA patent benefitted society. Does he dispute anything above? No. The crux of his argument is beating around the bush: ``How much marketing and promotional efforts were really necessary to make Apple and Microsoft want to use RSA rather than DES or rolling their own? Would they have wanted to do this if RSA hadn't been working to get the ITAR regualations changed to allow them to export?'' If the public-key cryptography market weren't profitable then RSADSI would not exist. So it is profitable. If RSA weren't patented then there would be competition for RSADSI---meaning *more*, not less, marketing and government lobbying. The patent changes the nature of the market but not the existence of the market. The same is true of any research idea. Either it's profitable to market the idea, or it isn't. If you see a company marketing the idea, then it's obviously profitable. The argument ``society doesn't benefit from the idea unless it is marketed'' is true but completely orthogonal to the question of whether society benefits from the *patent*. In theory, society gains from a (marketable) patent (which is novel, unobvious, etc.) by virtue of its publication; the inventor gains from a (marketable) patent because it is a temporary monopoly. When the idea isn't marketable, nobody gains and nobody loses. When the idea is marketable, somebody's going to market it whether or not there's a patent, and arguments about the benefits to society of marketing are entirely irrelevant. ---Dan