At least prior to the Web, the cloning I observed was within our
corporate family code, where it was reasonable to assume corporate
ownership of code created at corporate expense, and occasionally from
other sources such a SHARE which were explicitly set up for mutual help
and sharing. The greater the body of prior code considered, the more
difficult to clone usefully because at some point just knowing the
existence of a prior example, much less finding it and completely
understanding its function, becomes difficult. More often than not,
understanding and adaption were required; and woe unto him who cloned
without understanding. It was my practice when writing code based on
less-familiar algorithms that had been formally published to cite the
algorithm's source even though the actual implementation was all my own
and unique.
Even if we had possessed complete access to some other corporation's
code, which of certainty would have had different coding conventions and
different goals, it is unlikely we would have had time to glean much
useful from it. From a practical standpoint the issue of cloning from
un-owned code or code that had not been released for general use simply
didn't arise. At some point it simply becomes a more effective use of
limited resources to apply basic principles, known algorithms, and
existing local code to the problem at hand and plow ahead rather than
pursue an uncertain further search for prior solutions.
The Internet and especially Web applications greatly complicated things
by making it trivial to publish; and implicitly, the web's distributed
and inter-llinked design and unregulated data flow clouded ownership
and control of any data made accessible there. The early Internet
culture, that to make something available to the public on the Internet
was widely viewed as equivalent to placing data in the public domain and
granting free use, was not fully appreciated or understood by later
commercial users of the Internet. That this culture may not have any
legal basis does not lessen its existence, and in a distributed and
multi-national Internet it is likely to persist, especially since many
may regard current U.S. copyright law, greatly extended for the benefit
of the Disney franchises, as excessive. This culture has led to some
obvious excesses in the sharing of valuable recently-copyrighted data
without author compensation, for which practical and acceptable
solutions need to be sought. But as to web site design, my personal
opinion is that visible code and structure of web site design owes so
much of its development to the free and open culture of the Internet
that the cloning of visible aspects of web site design should not be
restricted, and certainly not by patent law; and in any event such
restrictions are unenforceable on the current Internet. It is practical
for server-side code and interfaces that are not visible on the Web to
have legal usage restrictions, although I would regard patent law as
inappropriate here as well. My arguments are based on "reasonableness",
and as such are no doubt antithetical to current legal arguments.
Joel C. Ewing
On 01/13/2013 03:12 PM, Scott Ford wrote:
Joel,
How much original code is floating around, I see a lot of cloning of code, why
reinvent the wheel.
So how can one look at this ?
Scott ford
www.identityforge.com
Tell me and I'll forget; show me and I may remember; involve me and I'll
understand. - Chinese Proverb
On Jan 13, 2013, at 2:37 PM, "Joel C. Ewing" <[email protected]> wrote:
#1 is why the current U.S. law extending patents to "business methods" is so
questionable, as those holding those patents seem wont to lay claim to the algorithms
underlying those methods, not to a specific physical implementation for that algorithm.
An algorithm is more like a creative expression than like a physical invention, and as
such should be treated differently than a physical invention, The only requirement for
creation of an algorithm is the equivalent of pencil and paper and a mind, which both
increases the possibility of concurrent, independent invention and complicates the depth
of search required to rule out prior art.
JC Ewing
On 01/12/2013 12:30 PM, Charles Mills wrote:
Simply, No. For at least three reasons.
1. Copyright and inventions are different domains. Copyright protects a
particular creative expression -- think of sonnets. Inventions are ways of
doing things. Think cotton gin. They are different domains.
2. Only the inventor can patent something. One cannot read about something
nifty and run out and patent it; one has to BE the inventor.
3. "Prior art" precludes obtaining patents (or, if push comes to shove, are
a defense against the enforcement of a patent that turns out after issuance
to be invalid because of prior art). Even if I wake up this morning and
innocently "invent" something, if it turns out that you wrote a paper about
it a couple of years ago then I am precluded from obtaining (or the courts
would invalidate the patent and preclude me from enforcing) a patent on my
invention (even if I never read your paper).
I think this is pretty much what John is saying. I don't see how what John
wrote could be interpreted as saying "inventing a software piece,
copyrighting it ..., a third party can patent the invention ..." What John
says is the opposite: "the putative 'invention', being already in the public
domain, is non-novel and thus not patentable."
BTW, copyright does not imply "public domain."
1. You mean "publically accessible." "Copyrighted and "public domain" are
essentially antonyms.
2. See my other note on copyright. No registration (public disclosure) is
necessary at all.
3. You can register a copyright with key elements redacted for trade secrecy
reasons.
Charles
-----Original Message-----
From: IBM Mainframe Discussion List [mailto:[email protected]] On
Behalf Of Graham Hobbs
Sent: Friday, January 11, 2013 4:42 PM
To: [email protected]
Subject: Re: OT: IBM #1 in number of patents for 2012. It's 20th year in a
row to do so.
John,
Could one conclude then, that inventing a software piece, copyrighting it
(thus on a Govt database thus a public domain), a third party can patent the
invention and you could end up paying the third party to use your own
software?
I read your comments closely and the above cannot happen!+ ..?
Graham
----- Original Message -----
From: "John Gilmore" <[email protected]>
Newsgroups: bit.listserv.ibm-main
To: <[email protected]>
Sent: Friday, January 11, 2013 12:49 PM
Subject: Re: OT: IBM #1 in number of patents for 2012. It's 20th year in a
row to do so.
Graham,
"Prior art" is a lawyer's term, not mine. If, say, I published a
paper in 1977 describing a scheme for extracting the square root of a
non-negative integer by successive subtraction, using the fact that
n^2 is the sum of the first n odd integers, i.e.,
2^2 = 4 = 1 + 3
3^2 = 9 = 1 + 3 + 5
4^2 = 16 = 1+ 3 + 5 + 7
5^2 = 25 = 1 + 3 + 5 + 7 + 9
. . .
a later attempt to patent such a scheme would [almopst certainly]
fail. This relation is due to Fr Marin Mersenne (1588-1648), but
while no mathematical relation is itself patentable a device based
upon it, which might otherwise be patentable, would not be if my paper
describing such a device were known to the relevant Patent Office.
Thus, while my paper might well be copyrighted (most published papers
are), that is not the point; what is crucial is that the putative '
invention', being already in the public domain, is non-novel and thus
not patentable.
--
Joel C. Ewing, Bentonville, AR [email protected]
...
--
Joel C. Ewing, Bentonville, AR [email protected]
----------------------------------------------------------------------
For IBM-MAIN subscribe / signoff / archive access instructions,
send email to [email protected] with the message: INFO IBM-MAIN
