PRESENTATION BY PAUL ROBINSON;
TANSIN A. DARCOS & COMPANY
MR. ROBINSON;:  Good morning, Assistant Secretary Lehman, Mr.
Kushan, the staff here, members of the audience, people
reading this report in the future and anyone else I've
forgotten.  My name is Paul Robinson.  I am Chief Programmer
for Tansin A. Darcos & Company, a software development firm
which specializes in text processing applications.
I also do work on commercial philosophy and metaphysics of
computer systems.  My special interest and my personal hobby
is collecting compiler and other program sources.  My reasons
for this are that these all solve problems.
By reading the manner and method other people solved other
problems it gives me insight into how to solve mine.  This is
a common practice in the computer world in order to, as the
expression goes, not reinvent the wheel.  I assume this is
common in other industries.  In fact, this is most likely the
reason that we have the patent system.
Someone is granted the exclusive right over commercial use of
their invention for a limited term in exchange for telling the
world about it.  For most computers, every application, such
as word processing or spreadsheets, has at least two and
possibly three or more different applications fighting for
market share.
The fights in this industry are usually referred to by the
expression dinosaur mating dances, as huge companies fight for
market share by releasing new programs to introduce new
features that the companies believe the customers want.
Version 3 of Turbo Pascal was an excellent language compiler
and less than 40K.  Version 4 would fit on one 360K diskette. 
Today, Turbo Pascal Windows Version 1.5 takes 14,000K of disk
space.
The program that is most probably the premier application for
graphics design is Corel Draw, which has so much material it
is being released on not one, but two 500 megabyte CD ROM
diskettes.  But there are probably still niches for smaller
companies to move into.
With the rapid changes in the marketplace it is necessary to
be ready to have new programs and new releases of old programs
out to encourage people to move to the next release.  In some
cases, companies make more money from upgrades and need to do
so to stay alive.  These kind of cycles mean new releases have
to out very quickly, in a matter of weeks to months.
With this kind of rapid development cycle, delays in a release
of a program could be fatal and the time available to create
the work is sometimes barely enough.  Until recently, the only
legal issue that anyone had to worry about was copyright
infringement.  This could be avoided by creating new work from
scratch.
Now we have another issue altogether.  A programmer can
independently create something without ever knowing about any
other developments, and yet be sabotaged by the discovery that
the method they have used is patented.  This is a standard
problem that all industries have had to face and it is part
and parcel of living in an industrial society.
But there is another problem.  A computer program is the
written instructions by a human being to tell a computer how
to perform a particular task.  As such, there are only two
parameters -- the input supply to the program and the expected
output.  Everything else is literally a figment of someone's
imagination.
This bears clarification.  A computer program is the means of
manipulating the internal data passed through a computer
system.  There is no requirement that the manipulations have
any correspondence to the real world.  In this, the real
world, doing anything requires the expensive movement of
people and goods from one point to another, the possible
refinement of materials into other materials and the
expenditure of energy and resources.
Doing anything in a computer is merely the essentially
cost-free movement of electron paths from one direction to
another.  It brings forth the approbation of the concepts of
the math, man and manual camped into reality, a world in which
anything is possible.
We can see this in the current discussions going on about
violent computer games where someone goes about maiming,
shredding and killing their opponents in graphic detail.  Then
when the game is over, nothing in the real world has changed
except the clock.
One of my favorites happens to be the game Doom, where the
weapon of choice is a 12-gauge shotgun, but a chain saw does
a nice job on people near you.  We have seen it in motion
pictures, such as Total Recall, where if one is acting within
a part of a computer program you cannot be certain what is
real and what is fantasy.
The movie Brainstorm had simulations of sexual contact,
apparently indistinguishable from reality.
There are things that can be done within a computer program
that cannot be done in the real world or would have
undesirable consequences.  As such, we should ask whether the
patent rules which are designed to apply to real world
conditions where doing something requires the expenditure of
energy and resources should apply where the known rules of the
universe do not apply.  Because the entire design starts from
scratch, the designer doesn't just get to play God, he is God.
Despite the ease under which someone can do something, we
still live under real world constraints.  Once a design choice
is made, it is very expensive in time and effort to change it. 
Worst, because most programs have interactions that cover
every part, a change to one part can cause unexpected and even
undesirable side effects in unknown and unexpected places.
Computer programs may be the stuff that dreams are made of, as
Shakespeare has used.  But once placed in a concrete form, as
written in software instructions, it's just as expensive to
repair or change as if it were carved out of real materials. 
It may be necessary to change the rules on patents to comply
with conditions that exist for computer programs.  I can think
of a couple of suggestions.
There has been talk of instituting first-to-file in order to
"harmonize" with the systems in other countries.  I think that
this is not a good choice.  Most countries have fewer patents
and provide protection which is much narrower than our system
does.  This would also mean that if someone does invent a new
and useful technique for use in a computer application would
be unable to collect any royalties from someone else who is
using the same invention who thought of it after they did, but
started using it before they filed.
The two really large problems that exist in our system are
probably two-part -- the secrecy under which patent
applications are filed and the problems if a program uses
parts of several patents which might not be discovered until
later.
As I mentioned earlier, computer programs are created out of
the figment of someone's imagination, then mass copied the way
an original painting can be reproduced by lithograph.  A
single large application might have a dozen people working on
it or thousands of people working on it, and upwards of 50
different features, and might have upwards of 200 or more
different parts.  Any one of those might be infringing on
zero, one or more patents, depending on what the claims are.
I doubt seriously that all but the largest corporations have
the resources to do 200 patent searches on a single software
application, which would be prohibitive for a small company
because it is likely that a large program could infringe
dozens of patents due to the continued development of ever
larger applications that do multiple simultaneous functions.
But more than that, you can't do patent searches on works
which are under application form until after the patent has
been issued.  And more importantly, with more than 1200
patents issued every week, checking them all for possible
interconnection would make it impossible to do any serious
work, although that might provide somebody with an idea for a
magazine.
Seventy years ago fears that the major piano manufacturer
would tie up the entire song market and create other companies
from creating player piano roles caused Congress to institute
compulsory licensing.  This may be an idea whose time has come
again.
Therefore, it might be considered to make two possible changes
to the patent law with respect to computer programs.  Perhaps
to implement a standard compulsory license, perhaps 10 percent
of the manufacturer's suggested list price, and to eliminate
secrecy provisions in the filing of patent applications.
Either of these could certainly help the situation. 
Eliminating secrecy and publishing applications once filed
would let people know about pending applications.  They could
endeavor to avoid infringements in advance.  It might also
allow them to file inferences early if it turns out that they
invented the concept earlier while it is still cheap to do so;
and would allow people to be aware of what is being developed,
which would comply with Article I, Section VIII of the
Constitution where patent protection was designed to
"encourage the improvement of the useful arts."
The other option of setting a standard royalty, via compulsory
license, would eliminate the worries of someone infringing
upon an existing patent or multiple patents or one that is
filed after their work is created.  It would also grant to
inventors an income stream from those who use their inventions
which started before they filed their application, but after
they reduced the invention to practice.
It would also limit liability and exposure to sustainable
limits.  As it stands, if someone develops a program that
infringes upon 40 patents and they each want a 3 percent
royalty, it isn't hard to see that 120 percent of the
program's income is not going to be possible.
Thank you.  Any questions?
COMMISSIONER LEHMAN;:  Thank you very much, Mr. Robinson.  You
obviously put a lot of thought into that statement and had
some very interesting ideas.  Thank you very much.
I'd like to next call on Keith Stephens, corporate counsel to
Taligent, Inc.
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