Return-Path: <brendan@cs.widener.edu>
Date: Mon, 4 May 1992 13:48:27 -0400
From: Brendan Kehoe <brendan@cs.widener.edu>
To: league-tactics@prep.ai.mit.edu
Subject: Harvard article on copyrights
Reply-To: brendan@cs.widener.edu


The article recently referenced [Stephen Breyer, The Uneasy Case for
Copyright: A Study of Copyright in Books, Photocopies, and Computer
Programs, 84 HARV. L.  REV. 281 (1970.  (about 70 pages or so)] has a
footnote that would be of interest to the LPF (the whole article is,
but this is most direct):

Footnote 268:
  Patent protection applies to novel ideas that are useful and not
  "obvious ... to a person having ordinary skill in the art."  35 USC
  para 103 (1964).  And it prohibits unauthorized _use_ of the
  patented idea whether or not it has been copied.  Patent protection
  as applied to computer programs would seem of less value, but
  considerably more danger, than copyright for several reasons.
  First, the standard of "novelty" is far more difficult to attain
  than copyright's standard of "originality;"  thus few programs may
  qualify for protection.  Second, since since patents tie up ideas,
  all programmers having new ideas would have to check through
  existing patents and patent applications to ascertain whether
  someone else had thought of it first.  The expense involved here
  (and in searching "prior art" to determine whether any conflicting
  patents are valid) may be so great as to deter program development.
  Third, the need to "invent around" patented ideas may waste
  development resources and interfere with standardization of
  programs.  Fourth, patent protection will provide IBM with the power
  to prevent competitors from using any of the ideas contained in
  their programs---a far more serious threat to competition than
  copyright's inhibition of copying them.  Finally, patent
  protection, by imposing a charge upon using an idea, inhibits the
  flow of already-created ideas throughout the industry.  See Machlup,
  supra note 149; Note, _Computer Programs and Proposed Revisions of
  the Patent and Copyright Laws, 81 Harv Law Rev 1541, 1552-54 (1968).
  The Court of Customs and Patent Appeals, however, has indicated a
  belief that computer programs are patentable.  Application of
  Charles D. Prater, 415 F.2d 1393 (CCPA 1969); Application of Walter
  D. Bernhart 417 F.2d 1395 (CCPA 1969).   The view of the patent
  court has not yet been confirmed by other federal courts.  The
  Patent Reform Act, as submitted to Congress in 1966, provided that
  computer programs were not patentable, but the section so stating
  has more recently been removed from the Reform Bill.  See Statement
  of Edward J. Brenner, Commissioner of Patents, in _Hearings on S. 2,
  S. 1042, S. 1377, S. 1691, S. 2164, S. 2597 before the Subcomm. on
  Patents, Trademarks, and Copyrights of the Senate Comm. on the
  Judiciary, 90th Cong., 1st Sess 393 (1968).