Prepared Testimony* and Statement for the Record

of

Jim Warren, Member,
Board of Directors,
Autodesk, Inc. (Sausalito CA)
              and
"Futures" columnist, MicroTimes,
              and
Government-&-computing columnist,
Government Technology magazine and BoardWatch magazine

on

Patent Protection for Software-Related Inventions

Topic A: Use of the patent system to protect software-related inventions
Docket #: 931222-3322 before the

Patent and Trademark Office Department of Commerce
Prepared for hearings held in San Jose, California on January 26-27, 1994

* - This was Autodesk's and my formal testimony, with two corrections -- 
changing "half this debacle" to "halt this debacle," and changing "must no" 
to "must not". --jim


Mr. Chairman and other distinguished representatives of the Department 
of Commerce, we appreciate your leaving Washington DC for two days to 
hold these important hearings, here, where software patents are a clear 
and present danger to us all. They threaten our entire industry's 
continuing growth and rapid innovation, and endanger our global 
competitiveness in computing.

My name is Jim Warren. I have been working in and reporting on the 
computer industry for almost a quarter-century.

First, I am a member of the Board of Directors of Autodesk, Inc. -- a 
multi-national software company specializing in computer-aided design. 
As a $400-million company, we have been recently identified as the 6th-
largest PC software publisher in the world. I am presenting its views 
and recommendations.

Second, I have been a computer professional since 1968, have founded 
multi-million dollar companies in Silicon Valley, and have held numerous 
leadership roles in personal computing, essentially since its inception 
in the 1970s. I am speaking from that perspective -- from which, I have 
also been the "futures" columnist for more than half a decade, for 
MicroTimes which has a 220,000 circulation. I also write monthly columns 
about government and computing for Government Technology magazine and 
for BoardWatch magazine.
	I was founding President of the Microcomputer Industry Trade 
Association, founding Chair of the First Conference on Computers, 
Freedom & Privacy, received the Electronic Frontier Foundation's Pioneer 
Award the first year it was presented and hold graduate degrees in 
Computer Engineering from Stanford, in Medical Information Science from 
the University of California Medical Center in San Francisco, and in 
Mathematics and Statistics from the University of Texas at Austin.
	I was founding Editor of microcomputing's first software 
periodical (Dr. Dobb's Journal), founded microcomputing's first free 
newspaper and first subscription newspaper -- InfoWorld, was founding 
host 15 years ago of television's oldest weekly computer show -- the 
"Computer Chronicles," and founded and chaired the world's largest 
public microcomputer conventions in the first decade of the industry.
	Although all that I "invented" were innovative, all utilized 
complex procedures and all were valued by those who paid millions to use 
what my innovative entrepreneurial risk created, it never occurred to me 
to patent them, and I could not have patented those "useful arts" if I 
had wanted to.
	Fortunately for us all, patent protection is not available for 
innovative services, as opposed to gadgets. We could all go home if you 
would simply declare that software is a service -- which, in many ways, 
it is.

But we are here, and I am speaking for Autodesk, and also as a long-time 
industry observer and leader. I speak as a successful innovator; but not 
as an intellectual-property lawyer.

My remarks are in three parts: principles, pragmatics and specific 
recommendations.

PRINCIPLES

Software is clearly useful. In many ways, it is the quintessential 
"useful art."
	Software accepts input, just as machines accept input or 
controlling directions. Software produces output, just as machines 
produce output or results. And machines can be patented. Also, software 
is a crucial component of some machines -- especially process-control 
devices such as the rubber molds of Diamond v. Diehr. 
	So why shouldn't software be patented? (To keep from muddying 
the waters, please accept that my remaining remarks may not apply to 
software designed primarily to control physical equipment.)

We all know that software is somehow different from all traditional 
inventions. But how does it differ from the devices that are surely what 
the framers of the Constitution envisioned when they mandated patent 
protection?
	The difference is that all traditional inventions enhance our 
physical capabilities, whereas software mimics the mind and enhances our 
intellectual capabilities. That is what makes software different from 
all patentable devices, and that is what justifies sui generis.

Software mimics the stimulus functions of the mind. But the patentable 
input devices that permit software to mimic vision, hearing, touch, 
taste and smell are as different from the software, as human senses are 
different from the mind.
	Software mimics the memory of the mind, but the patentable 
storage devices are as different from software, as the physical brain is 
different from the intellectual processes it performs.
	And software mimics the response functions of the mind, but the 
electronic and electro-mechanical output devices are as different from 
the software as thought is from action.
	Software is not a gadget.

So, let me define what software is, for the purpose of our discussion, 
based on its functionality -- its utility; the useful character of its 
art:
	Software is what occurs between stimulus and response, with no 
physical incarnation other than as representations of binary logic.

Prior to the 17th Century, analytical intellectual processes and 
algorithms -- sometimes called mathematics, sometimes called logic, 
often called philosophy -- were conducted in natural language, written 
and verbal. It is amazing to realize what intellectual advances were 
made using no more than those primitive "inventions" -- language and 
writing.
	Then Rene' Descartes "invented" symbolic mathematics. And in 
the next four centuries, we came to depend on manipulating the 
hieroglyphics of symbolic mathematics -- and to some extent of symbolic 
logic -- to aid in performing our analytical intellectual processes to 
solve problems of the mind, primarily but not exclusively mathematical 
problems and processes. That "invention" massively enhanced our ability 
to perform analytical intellectual processes.
	Could Descartes have patented symbolic mathematics? I think 
not.

In the 19th and 20th Centuries, the performance of analytical 
intellectual processes -- "algorithms," if you will -- was further 
greatly enhanced by the use of mechanical and electro-mechanical 
calculators, where the intellectual processes were "inventions" of 
sequences of button-pushes and crank-turns. And they permitted problem-
solving sophistication that was simply not possible without the 
machines.
	The machines that aided the mind were patentable. The 
intellectual processes for logically solving problems -- the 
computational sequences or algorithms -- were often novel, often wildly 
non-obvious, and certainly useful.
	But did those arithmetic and logical intellectual processes 
become patentable once they were assisted by a machine? I hope not.

As a telling aside, the name, "computer," derived from the first so-
named machines replacing World War II women who were calculating 
ballistic trajectories by executing algorithms using row upon row of 
Marchant calculators. The name of the government job-classification for 
those women was, "computer."
	Furthermore, Eckert and Mauchly invented the first all-
electronic computer, the Electrical Numerical Integrator and Computer -- 
the ENIAC. And John Mauchly's wife was a computer -- and a delightful 
human being, at that.

Descartes' symbolic mathematics and symbol-manipulation provided an 
alternative for representing and performing algorithmic processes of the 
mind, and greatly expanded the intellectual limits of our mind -- but 
its symbols and processes were not patentable.

Calculators offered another alternative for representing and performing 
algorithmic processes of the mind, but the processes were not 
patentable.

Now, software offers another alternative for representing and performing 
the logical and computational algorithmic processes of the mind. So 
instead of assisting our intellectual processes by unpatentable 
manipulations of symbols on paper, or unpatentable sequences of button-
pushes, we now represent the content and performance of our intellectual 
tasks in binary form and let the computer mimic our mind. And it, again, 
greatly expands the intellectual limits of our mind.
	Small wonder that there are those who want to monopolize 
anything that works like it.

The fundamental question is: Do we want to permit the monopoly 
possession of everything that works like logical intellectual processes. 
I hope not.

The mind has always been sacrosanct. The claim that intellectual 
processes and logical procedures (that do not primarily manipulate 
devices) can be possessed and monopolized extends greed and avarice much 
too far. Algorithmic intellectual processes must remain unpatentable -- 
even when represented by binary coding in a computer; even when executed 
by the successor to the calculator.

We know that computers pose a threat to our well-known Constitutional 
rights. They threaten our privacy, our freedom from unreasonable search 
and seizure, our ability to speak without monitoring and censorship, and 
assemble without the chilling effect of electronic surveillance.
	The threat is so serious that, in 1991, Harvard Constitutional 
scholar Laurence Tribe, for the first time in his life, proposed an 
amendment to the Constitution to assure that, "This Constitution's 
protections for [the Bill of Rights' freedoms], shall be construed as 
fully applicable without regard to the technological method or medium 
through which information content is generated, stored, altered, 
transmitted or controlled."
	It is becoming clear that he should have also included the 
protection of the freedom to continue to utilize the exclusively-
intellectual algorithmic functions of the mind.

What frightens and infuriates so many of us about software patents is 
that they seek to monopolize our intellectual processes when their 
representation and performance is aided by a machine.
	What happens from the time a stimulus is input to the mind or a 
machine, through its arithmetic and logical processing by the mind or a 
machine, until a response is output from the mind or a machine -- must 
be free from monopoly.
	The government and the money-counters must not lock away from 
us, our intellectual processes -- not even when we execute them with the 
aid of symbols on paper, or performances on calculators, or programs in 
computers.

What occurs between stimulus and response, with no incarnation other 
than as electronic representation of binary logic and all of its 
algorithmic interpretations, must remain free.

The representation of an intellectual process -- in a book, or source 
code or binary, electronic form -- should be protected against 
unauthorized copying, but everything that performs similar to a thus-
described and implemented process that is exclusively-intellectual, 
simply must not be monopolized.
	And that includes the representations or output created by 
computer programs when the primary purpose of such representations is 
the utilitarian function of communicating results for our further 
intellectual use -- especially if they are anything less than amazingly 
novel and non-obvious.

What programmers do is figure out how to solve intellectual problems, 
rather than physical problems. And we represent our thought processes 
and their performance in software, rather than symbols on paper or key-
strokes on calculators.
	This nation would do well to think long and hard before it 
decides to grant monopolies over intellectual problem-solving.


One other precedent worthy of mention is the Constitution. It declares 
that the intent of intellectual-property protection is, "To promote the 
progress of science and useful arts, by securing for limited times to 
authors and inventors the exclusive right to their respective writings 
and discoveries." [Sec. 8, Par. 8]

The function is to promote progress by protecting the artistic and non-
utilitarian works of authors through copyrights, and protecting the 
useful devices of inventors through patents. It says nothing about 
monopolizing intellectual processes -- not even when they are mimicked 
by a machine designed explicitly to aid the intellect.

Everything that is represented or performed by software is first a 
completely-detailed algorithmic intellectual process. There are no 
exceptions, other than by error.

Thus, I respectfully object to the title for these hearings -- 
"Software-Related Inventions" -- since you are not primarily concerned 
with gadgets that are controlled by software. The title illustrates an 
inappropriate and seriously-misleading bias. In fact, in more than a 
quarter-century as a computer professional and observer and writer in 
this industry, I don't recall ever hearing or reading such a phrase -- 
except in the context of legalistic claims for monopoly, where the 
claimants were trying to twist the tradition of patenting devices in 
order to monopolize the execution of intellectual processes.

PRAGMATICS

There is absolutely no evidence, whatsoever -- not a single iota -- that 
software patents have promoted or will promote progress.

For the first 40 years of the computer industry, and most of the 20 
years of the microcomputer industry, there were almost no claims of 
monopoly over intellectual processes. Nonetheless, investors invested 
and profited; companies grew wealthy; employment expanded; salaries were 
and are high; un-patented innovation was amply rewarded; and, explosive 
progress was promoted -- as the Constitution intended.
	Can you imagine how computing would have developed if 
everything from b-trees to Shell-sort to n-way tape-merge to block-
structured programming to object-oriented design were each monopolized 
for 17 years, like xerography? Where would Microsoft be if Gary Kildall 
had patented CP/M, of which MS DOS was a look-alike? Or Digital 
Equipment Corporation had patented the TOPS-10 CCL interface, from which 
Kildall derived the CP/M command interface?
	Where would Windows be if graphical user interfaces had been 
patented by Apple? For that matter, where would Apple be if Xerox Palo 
Alto Research Center had locked up GUI techniques for 17 years?
	Neither the innovators, nor the investors, nor the consumers 
would have benefited, and national progress would have been greatly 
suppressed.

Of the thousands of programmers I have known in the last quarter-
century, I have never heard a single one say they didn't develop a 
program because they couldn't monopolize.

Of the thousands of programs I have known about as a multi-decade 
industry observer, I don't know of a single one that was innovative 
enough to promote progress -- much less perhaps-qualify for a patent as 
a "useful art" -- that couldn't find funding.
	This is at least partially due to the fact that -- unlike 
patentable devices -- software can be created with relatively little 
investment, and quickly duplicated and distributed at even less cost. 
And almost every major software publisher, today -- including Autodesk 
-- is proof of it.

The system was not broken when there were no software patents.

Now however, there is growing evidence that software patents have begun 
to harm and deter progress in what your hearing notice stated was, "the 
fastest growing industry in the United States ... [that] employs about 4 
percent of the American work force ... [with employment growing] at an 
annual rate of 6.6 percent."
	Wealthy corporations are beginning to use their software 
patents to attack weaker opponents. But small, under-funded innovators 
have little more than the false delusion of protection when they receive 
a patent. (Software patents do, however, provide endless employment for 
intellectual-property litigators.)
	Here are examples illustrating that the waste of resources and 
danger to innovation are increasing:

Microsoft reportedly paid $25-million to IBM in 1992 to license IBM's 
portfolio of about 1,000 software patents -- not for use, but simply for 
self-defense. That's $25-million that Microsoft did not spent to reward 
innovation and promote progress.

Lotus inappropriately used copyright protection -- intended for artistic 
and non-utilitarian works -- to monopolize displays and key-strokes that 
were useful and should never have been protected under copyright in the 
first place. But they were also obvious and were hardly novel by any 
stretch of the imagination -- thus, should not have been protected at 
all, certainly not by patent.
	It appears to most of us that Lotus won only because they could 
outspend their opponents -- under-funded Paperback Software. Now, we 
have dangerous case-law precedent and have destroyed what was otherwise 
a viable, cost-competitive, job-producing, tax-paying, innovative 
software publisher. Innovation was not rewarded, and progress was not 
promoted.
	Fortunately for Lotus, VisiCorp had not copyrighted, much less 
patented, the displays or intellectual processes that they chose to 
mimic by machine, a decade earlier.

Paul Heckel of HyperRacks, who spoke yesterday, was once an innovative 
programmer --Jwho foolishly thought a software patent would protect his 
innovation. But he is neither an attorney nor wealthy. So he has wasted 
most of his last decade in bitter, consumptive attempts to protect his 
patent, but has reaped little reward. His patent left him no time to use 
his technical talents for personal benefit nor to promote progress.

The company for which I am speaking, Autodesk, holds some number of 
software patents and has applied for others -- which, of course, remain 
secret under current U.S. law. However, all are defensive -- an 
infuriating waste of our technical talent and financial resources, made 
necessary only by the lawyer's invention of software patents.
	Autodesk has faced at least 17 baseless patent claims made 
against it and has spent over a million dollars defending itself, with 
millions more certain to pour down the bottomless patent pit unless we 
half this debacle. Fortunately -- unlike smaller software producers -- 
we have the financial and technical resources to rebuff such claims. We 
rebutted all but one of the claims, even before the patent-holders could 
file frivolous law-suits, and will litigate the remaining claim to 
conclusion. Note that your Office has issued at least 16 patents that we 
have successfully rebutted, and we never paid a penny in these attempted 
extortions that your Office assisted.
	But it was an enormous waste of resources that could have 
better been invested in useful innovation. These unending baseless 
claims benefit patent lawyers, but they certainly do not promote 
progress.

Ask each major software publisher in your hearings to disclose the money 
and talent they are wasting on software patents and defenses, instead of 
investing it in progress and innovation. I would guess that, across the 
software industry, such claims may consume as much as a billion dollars. 
Much worse, they are consuming more and more time of the programming 
talent in each company, for programmers are the only ones technically 
competent to assist attorneys in preparing one defense after another 
after another. Still other programmers remain unproductive in one 
deposition after another after another, and one court hearing after 
another after another.
	This does not reward innovation nor "promote progress."

Furthermore, software patents can provably fail to reward innovation and 
at the same time deter progress.
	As an example: There is an arithmetic coding compression 
algorithm that is an option to the JPEG standard. But such arithmetic 
coding algorithms are patented by IBM -- and possibly subject to patents 
held by Mitsubishi and others. As a direct consequence, almost no JPEG 
implementations support this option -- they only implement Huffman 
coding, that is less efficient but not subject to monopoly.
	Thus IBM receives no revenues, users must settle for a less 
powerful tool, and IBM cannot even use the technology to their own 
advantage because their products would then be incompatible with those 
of other vendors.

Additionally, patents impede progress and harm the market by forcing 
incompatibility -- designed exclusively to avoid infringing a patent. 
Innovation is diverted from genuine progress into finding a path to 
circumvent the visible alligators in the patent swamp, with other 
alligators invisible, hidden beneath this nation's disclosure delay. 
Products are not interoperable, and standards are thwarted because 
components in them are patented.

It's bad enough to inflict this harm and impediment to progress on 
physical devices. To extend it to machine-mimicked intellectual 
processes is outrageous.

Finally, there is the intense danger that software patents pose to our 
industry's global competitiveness.
	We all know that Wall Street's near-term bottom-line myopia 
strangles U.S. corporate long-term research-and-development investment 
-- unlike corporations in some other nations, notably on the Pacific 
Rim. Thus, we are at a disadvantage in producing basic innovation that 
is patentable. But foreign companies can do it, and are doing it.
	As an example, several Japanese companies are pursuing 
extensive research in fuzzy logic, and are reportedly filing for U.S. 
patents on every comma and semicolon. Are they likely to license such 
patents to their U.S. competitors?

We have seen what foreign investments in long-term R&D have done to our 
competitiveness in traditionally-patentable areas such as consumer 
electronics, automobiles and optics. Nonetheless, few publicly-traded 
U.S. corporations have dared to endanger next quarter's bottom line by 
investing great amounts in R&D that can pay off only in the long term.
	Shall we inflict this danger on our software industry?

And the debacles deriving from differing national patent policies are 
intolerable. For example, the patent on  public-key cryptographic 
algorithms only restricts their use by North Americans -- due to 
different disclosure requirements. (Strictly incidental to the patent 
issue, U.S. tax-payers are the ones who paid for public-key research and 
development at two publish-or-perish academic universities, but are 
among the few people in the world who cannot freely use what they paid 
for.)



SPECIFIC RECOMMENDATIONS

First and foremost, let us agree that those who hold software patents 
probably prefer patent protection, and those who spend their time and 
resources creating technical innovation and national progress -- rather 
than creating patent applications and litigation -- probably prefer 
unfettered freedom to innovate.

Let us also agree that the Constitutional intent is to "promote 
progress."

So let us disregard who wants what for self-benefit, and act on 
principle.
	We propose as a principle, that those processes that are 
exclusively-intellectual and exclusively-algorithmic -- even when 
mimicked by machine -- must not be monopolized.


These are Autodesk's implementing recommendations, and they are mine, 
stated as a deeply concerned computer professional and a multi-decade 
industry observer and entrepreneur. And, they are supported by the vast 
majority of talented programmers I have known. (They are in less favor, 
however, with many of the intellectual-property attorneys I know -- who 
do not create technical innovations, but are well-paid to patent them, 
threaten them and defend them.)

We offer two recommendations, the second having twelve parts -- so to 
speak, the 12 Apostles of Redress:


FIRST:	Issue a finding that software, as I have defined it, implements 
intellectual processes that have no physical incarnation; processes that 
are exclusively analytical, intellectual, logical and algorithmic in 
nature. Use this finding plus the clearly-stated Constitutional intent, 
to declare that the Patent Office acted in error when it granted 
software patents. Declare that software patents monopolize intellectual 
and algorithmic processes, and also fail to fulfill the Constitutional 
mandate to promote progress -- that in fact, they clearly threaten it.
	Declare that only the representation of such algorithmic 
intellectual processes -- in human-readable or machine-readable form -- 
is protectable, and then only by controlling the right to copy it.
	Declare that software, as a mimic of the mind, cannot be 
patented.

Like Prohibition's speak-easys and the nation's unaware nuclear-test 
subjects, this will create the problem of how to make whole, those who 
hold erroneously-issued patents. But that cannot justify continuing to 
patent intellectual processes. Repaying patent-holders can and should be 
resolved through the political process -- although patent-holders cannot 
expect to retain their improperly-granted monopolies of logic.
	Like the rest of us, the government must accept the 
consequences of its errors and move to correct them.


SECOND:	Until -- and only until -- software patents are definitively 
prohibited, reject or at least freeze all such applications that have 
not yet been granted, pending conclusive action on all of the following 
twelve recommendations:


1.	REDRESS SERIOUS ERRORS OF PREVIOUS ADMINISTRATIONS: Issue a 
finding that there have been extensive and serious errors of judgment in 
a large percentage of software patents granted in the past, and 
immediately recall all software patents for re-review and possible 
revocation.
	Encourage industry assistance by distributing summaries of all 
such patents to the top 20 or 50 or 100 software publishers and all 
other interested parties, requesting their examination and soliciting 
prior art and other challenges. This will probably require legislation 
to protect cooperating companies, lest they dare not participate for 
fear of later claims of "knowing infringement."
	In addition, make the information available via the Internet 
and solicit maximum public input via that channel.

2.	MANDATE DISCLOSURE UPON FILING: Issue a finding that it 
unconstitutionally suppresses progress to hide software threats in 
secret filings for one to five years, especially given that software 
products often have a development period measured in months and a life-
span of one or a very few years. Note that most of the high-tech nations 
with which we compete require disclosure upon filing, or very soon 
thereafter.
	Based on those findings, adopt a policy of disclosure upon 
filing, or at least within, say, 90 days of filing.
	This will give software developers essential early warning of 
possible danger. It will also allow them to provide badly-needed prior 
art before the Patent Office spends staff time on the application, and 
provide that prior art perhaps years before the patent might be granted 
and become a threat.
	If a potential filer fears that such early disclosure will 
endanger trade-secret protection because the patent application may be 
rejected, so be it. Somehow, most of the rest of the world survives with 
disclosure-upon-filing.
	Let it be the responsibility of those seeking lengthy 
monopolies, to defend the truly novel and truly non-obvious character of 
their innovations in a public patent-application review process. Do not 
continue to foist that responsibility onto all other practitioners, who 
must now prove after-the-fact invalidity in costly, intolerably-delay-
ridden court defenses -- that leave as our only options, the payment of 
unjustified ransoms, years of halted progress and waste expended on 
defensive patent applications.

3.	REQUIRE DISCLOSURE OF COMPLETE SOURCE CODE AND DOCUMENTATION 
UPON FILING: Reiterate that the major function of the patent system is 
to assure complete public disclosure of innovation in order that all may 
benefit and progress be promoted. Issue a finding that software patents 
require full disclosure of complete, original source-code and complete 
internal documentation.
	Then require its disclosure -- preferably upon filing, or 
perhaps 90 days later, but at least upon the granting of a software 
patent. Note that this implements the "best mode" requirement.
	Furthermore, find that software-patent disclosures in the past 
have often failed to fulfill this minimum requirement, and require such 
disclosures for all present software patents, to correct their 
improperly-incomplete disclosures of the past. Patent-holders who 
decline to so disclose in a timely manner must have their patents 
invalidated by prompt Patent Office action.

4.	PROHIBIT FILINGS AFTER ANY PUBLIC EXPOSURE: Issue a finding 
that most of the nation's high-tech competitors, in Europe and 
elsewhere, prohibit patent filings after any public exposure of an 
innovation. Further find that patentable innovation in software is 
unclear; vaporware* is rampant; early disclosure is common; sharing of 
disclosed innovation is almost universal; and, possibly-infringing 
development using such disclosures is almost inescapable. Use that 
finding to prohibit any filing after the date of any public exposure.
* - "vaporware" refers to products and innovations that are announced 
many months and even multiple years before they are finally delivered.

5.	REDUCE REQUIREMENTS FOR CHALLENGING SOFTWARE PATENTS: Find that 
the evaluation of what constitutes new, novel and un-obvious innovation 
in software is highly subjective and essentially impossible for the 
Patent Office to judge, especially since the Office does not have the 50 
years of prior art that exists, available to it. Use that finding to 
change the standard for invalidating software patents, from a 
requirement for "clear and convincing" evidence, to no presumption of 
validity at all -- which is usually the case if the experience of well-
funded defendants such as Autodesk is any measure. At an absolute 
maximum, require no more than a "preponderance" of evidence.

6.	REDUCE PROTECTION PERIOD: Issue a finding that 17-year software 
patents are clearly unreasonable in an industry where (1) significant 
innovation can often be created in months, (2) most innovation has 
minimal costs relative to traditional inventions, (3) manufacturing and 
distribution is trivial, (4) products can be shipped within weeks of 
being finalized, (5) great profits can often be attained in less than a 
year, (6) the life of a product is typically only a few years, and (7) 
all of the growth of the industry -- from inception to Diamond v. Diehr 
in 1981, was barely three times that 17-year monopoly period.
	Therefore, shorten the one-time protection period for software 
patents from 17 years to no more than, say, 2 years. Sui generis is 
justified.

7.	REPLACE FIRST-TO-INVENT WITH FIRST-TO-FILE: Issue a finding 
that this nation is almost alone in granting monopolies on the basis of 
first-to-invent, rather on first-to-file. If the patent system is 
justified and public-disclosure has merit, then encourage it by awarding 
monopolies only on the basis of first-to-file -- and disclose.
	But, of course, retain the principle that prior art always 
invalidates a patent.

8.	DECLARE THAT USEFUL INTELLECTUAL COMMUNICATIONS CANNOT BE 
MONOPOLIZED: Find that useful output from computer programs, that does 
not primarily control equipment and is not primarily aesthetic or 
artistic in nature, is a response from an intellectual process; is thus 
the concluding part of an algorithmic and logical process, and may no 
more be patented than can any other part of the communications processes 
of the mind.

9.	TO PROMOTE CONTINUING PROGRESS, MANDATE CROSS-LICENSING: If you 
are going to grant monopolies over our algorithmic processes, then at 
least mandate that we can use them under license from the monopolists.
	State the irrefutable fact that essentially-all software 
innovation to date, and all investment therein, and all of the nation's 
global leadership in this field of software, have all occurred without 
the driving-force of patent monopolies. Thus, require mandatory cross-
licensing of software patents in a manner that permits the patent 
holders to reap reasonable rewards, but avoids the clear and present 
danger that software patents will destroy the national leadership in 
this important industry, and produce inferior products for the public, 
and otherwise impede progress. We suggest mandantory licensing rates not 
exceeding, say, 5% of a licensee's profits, prorated across all cross-
licensers for a given product.

10.	PROVIDE A NATIONALLY-ACCESSIBLE PRIOR-ART COLLECTION: Create a 
public repository of the limited and incomplete amount of prior art that 
your Office can collect, with at-least-descriptions copied to every 
Federal Repository Library and updated monthly, and make it freely 
available via the Internet, to the extent such is technically possible. 
Facilitate and encourage submissions from all sources, and especially 
require inclusion of all software produced under any government grant.
	If you don't have the resources to do it, then inform Congress 
that you are unable to perform your assigned functions without 
endangering national progress.

11.	EXERCISE MUCH GREATER DUE DILIGENCE WITH REGARD TO SOFTWARE 
PATENTS: The Patent Office simply must perform more rigorous review 
before it issues software patents. If it insists on granting monopolies 
on algorithmic intellectual processes, then the Office must become much 
more than primarily an archivist. Given the chaos and cost you are 
creating in our industry, you must do much more than to simply accept 
filings, conduct nominal research and then issue a patent, leaving it up 
to endless threats, defenses and court battles -- among those who can 
afford them -- to ascertain which few software patents might be valid, 
which is too-often determined only by the relative wealth of the 
combatants.

12.	CREATE A LARGE PUBLIC ADVISORY BODY: Encourage and assist the 
creation of a large advisory commission of volunteers who are 
technologists -- those who produce the nation's progress in this area -- 
not just intellectual-property attorneys. Seek them from a broad 
spectrum of software publishers, great and small producers, including 
individuals.
	Technical innovators and their management have, basically, two 
options: They can invest some time and effort in correcting these 
intellectual-property protection-errors, or they can invest endlessly in 
documenting and filing defensive software patents, reviewing other's 
patents for threats against their creativity, and in ever-escalating 
claims, defenses, ransom payments, depositions and court hearings.
	Among other things, ask that the advisory commission 
participate, from the beginning, in the drafting of any legislation on 
this matter, proposed by your Office. And request their assistance with 
needed legislative efforts.

These specific recommendations will require political support to obtain 
needed Congressional action, and this industry has been politically 
asleep. But continuing software-patent debacles are beginning to awaken 
it -- most especially its innovators. And we certainly have the 
financial resources, communications tools and tenacity to seek effective 
redress -- as we finally organize and choose to act.
	However, the needed Congressional action can be greatly 
facilitated by supportive recommendations from your Office. Please draft 
them soon -- not cloistered inside the Washington Beltway, but with 
extensive Internet circulation of all drafts and discussion.

But, to best promote the nation's progress, reward innovative 
algorithms, benefit investors, enhance the economy, create and protect 
high-wage jobs, and permit continuing global leadership -- refute 
software patents.

Let us stand on each others' shoulders, rather than on each others' toes.

I appreciate your attention to these comments and recommendations and 
look forward to your timely response and action.

-- Jim Warren