Re: what does a patent restrict?

On 10/14/1999, Bruce E. Hayden <bhayden[_at_]ieee.org> wrote:
>
> On Wed, 13 Oct 1999, Mark Lemley <<mlemley[_at_]mail.law.utexas.edu> wrote:
> >
> > Actually, the law says "fixed in a tangible medium," which section
> > 101 defines as "sufficiently permanent or stable to permit it to be
> > perceived, reproduced or otherwise communicated *for a period of
> > more than transitory duration."* The court ignored this last phrase
> > entirely. The House Report explaining this provision says the
> > following: "The definition of fixation would exclude from the concept
> > purely evanescent or transient reproductions such as those projected
> > briefly on a screen, shown electronically on a television or other
> > cathode ray tube, *or captured momentarily in the memory of a
> > computer* H.R. Rep. No. 94-1476, at 52-53 (1976).
>
> Playing devil's advocate, 17 USC 101 states that:
> A work is ''fixed'' in a tangible medium of expression when its
> embodiment in a copy or phonorecord, by or under the authority of
> the author, is sufficiently permanent or stable to permit it to
> be perceived, reproduced, or otherwise communicated for a period
> of more than transitory duration. ....
>
> The problem is that though DRAM operates in a somewhat transitory
> manner, the fact that it feeds back upon itself (i.e. is refreshed
> by being rewritten), data is often present for more than a transitory
> duration in DRAM. Of course, in the case of other memories such as
> SRAM (mostly used in cache memories), there is not the destructive
> refresh, and thus the presence of the data is in many instances
> definitely not transitory.
>
> So, if you abstract a level, and look at it as a black box, ignoring
> the physics inside, if you ask can it be perceived for a period of
> more than transitory duration, the typically yes for even DRAM.
> Code on some of my computers has been resident and visible in
> the DRAM of those computers using the right tools for at least
> 6 months now.
>

Why doesn't the DRAM argument cut the other way? No instantiation of the computer program ever exists in DRAM for more than a second. It is continuously replaced by new instantiations. Each of those instantiations seems "captured momentarily in the memory of a computer"; if it isn't, I am hard-pressed to think what that phrase might mean.

Bruce is right, of course, that the *practical effect* of storing a program in memory may be that it is available from that memory for a significant period of time because it is continuously refreshed. Some courts have even taken the practical "does it actually appear for a long time" approach to fixation. [ACS v. MAI, for example]. But under that approach, it seems to me we couldn't say ex ante whether a RAM "copy" was fixed or not -- we'd have to wait and see how long it stayed resident.

Mark Lemley
<mlemley[_at_]mail.law.utexas.edu> Received on Fri Oct 15 1999 - 16:13:11 GMT