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The following archive was created by hippie-mail 7.98617-22 on Sat Apr 10 1999 - 01:17:18
Vin McLellan (vin@shore.net)
Wed, 18 Nov 1998 23:52:22 -0500
On the C'punks List, Eric Michael Cordian <emc@wire.insync.net> opined:
* As you may have guessed, I'm not a fan of permitting software to be
* patented. Particularly things like RSA for which obvious prior art
* existed....
Vin McLellan <vin@shore.net> replied:
>> Now, it seems to me reasonable, albiet academic, to argue whether or not
>> software should be patentable. It is also certainly reasonable to argue
>> whether or not cryptographic algorithms should be patentable.
>>
>> On the other hand, it seems to me unreasonable, willfully ill-informed,
>> and/or malovelent to declare -- in the face of several judicial rulings
>> which have firmly ratified the RSA PKC patent -- that "prior art"
>> exists which should have invalidated that patent.
E.M. Cordian -- the "Nym" or pseudonym for someone who says he
is a group of people (and who has been collecting $500 donations from
folks willing to help the Cordian Group sponsor an algebraic attack on
the DES; see the "DES Analytic Crack Project" at
http://www.cyberspace.org/~enoch/crakfaq.html) -- spun off an
individual voice to respond:
>Judicial rulings notwithstanding, a description of that which is now known
>as RSA Public Key Cryptography was published in a book of algorithms which
>pre-dated by quite a few years its patenting and commercial promotion by
>the current patent holders.
When I read Mr. Cordian's claim, I asked Ron Rivest if he had ever
heard of such a thing. Prof. Rivest was curious, but he said it was all
news to him. To the best of his knowledge, he said, there had never been
anything like a description of the RSA public key cryptosystem published
prior to the paper he, Adi Shamir and Len Adelman, published in April,
1977: "On Digital Signatures and Public Key Cryptosystems."
Last year, former Cylink attorney Patrick Flinn had suggested that
one possible challenge to the RSA patent might be to highlight the
similarity between the RSA PKC and the Pohlig-Hellman crypto system,
invented at Stanford University in 1975. For an invention to be patentable,
of course, it must be useful, novel, and non-obvious. Flinn argued that the
reformulation of the Pohlig-Hellman algorithm with a modulus that was the
product of two prime numbers was a potentially "obvious" enhancement.
But not even Pat Flinn claimed to know anything about a
"description of that which is now known as RSA Public Key Cryptography"
being published somewhere -- anywhere -- years before the RSA cryptosystem
was invented and named at MIT.
As Matt Blaze recently pointed out, there have also been reports
about secret research into public-key cryptosystems by cryptographers
within the British cryptographic service, GCHQ, in the early 1970s.
According to former NSA Director Bobby Ray Inman, the NSA was working on
PKC even earlier. But until last December, when the Brits released a GCHQ
historical paper written by John Ellis in 1987, there had been little or no
unclassified information available about this pioneering research. See:
http://www.nytimes.com/library/cyber/week/122497encrypt.html We still
don't know what was done at the NSA, by whom, or when.
Secret government R&D, however, is not really relevant to
intellectual property claims on public key crypto. Full publication of the
details of an invention -- in exchange for a limited-duration property
right -- is really at the heart of the patent process. Except in
extraordinary circumstances, the NSA doesn't play in this league.
In the commecial world, on the other hand, it's hard to think of
priceless information being kept secret (particularly when it is only worth
something if it is on a bargaining table.) In the lawsuits between
Stanford/Cylink and RSA Data Security over the scope and validity of the
Stanford and RSA patents, "obvious prior art" -- certainly evidence that
the RSA cryptosystem had been published by someone other than the MIT
inventors before 1977 -- would have been worth tens of millions of dollars.
It might have been potentially worth that much to Attorney Flinn himself!
I knew that no mention of such a document or book had ever emerged
in Cylink's multi-year campaign to invalidate the RSA patent, so it
seemed a safe bet to challenge Mr. Cordian directly.
"There was no such book. Cordian's statement is just not true," I
declared.
Mr. Cordian replied with dry scorn:
>>> Only a complete moron would place himself in the position of trying to
>>> prove such an all-encompassing negative.
(Not light of hand, our Mr. Cordian.... Yet, in the real world,
not all negative propositions are impossible to prove. As for the rest,
I'll leave it to the List and other readers to decide which of us deserves
a Dunce Cap for placing himself in an untenable position.)
Mr. Cordian didn't press his initial argument that a cryptographic
algorithm, even if embodied in a pseudo-mechanical device or process,
doesn't deserve patent protection. Since 1981, the US Courts have allowed a
process which includes a mathematical algorithm to be patented -- if the
algorithm is merely part of an otherwise patentable process. For the RSA
cryptosystem, this seems reasonably straightforward to those without a
religious bias.
To quote the Federal Court in the Schlafly Case, affirmed by the
Circuit Court:
"Taken as a whole, the RSA patent is entitled to patent protection. The
claims of the patent make use of known structures, a communications
channel, an encoding device and a decoding device, to produce a practical
invention, i.e. a means for securely transmitting messages across an
insecure line. The messages are comprised of word signals that are
transformed from one state, plaintext, to another state, ciphertext, by the
patented invention. The word signals are then transmitted across an
insecure line and transformed by the decoding device from ciphertext into
plaintext. As such, the claimed invention is not merely a disembodied
mathematical concept but rather a specific machine designed to transform
and transmit word signals."
(I was never impressed by the absolutist argument against patents
on math-based processes. Mr. Cordian summarized this POV: "The fact that
the [RSA] patent couldn't be successfully challenged even though its
mathematical underpinnings were well known years prior reflects badly only
upon the notion of mathematical patents, and hardly refutes the facts in
evidence." By that logic, it seems to me, a basic knowledge of physics
could invalidate almost all patents for mechanical inventions.)
The second traditional attack upon the RSA public key cryptosystem,
noted above, is the charge that it was "obvious" or insufficiently novel.
Section 103 of the US Patent Act provides that a patent is invalid "if the
differences between the subject matter sought to be patented and the prior
art are such that the subject matter as a whole would have been obvious at
the time the invention was made to a person having ordinary skill in the
art...."
If, as Mr. Cordian claimed, there was "a description of that which
is now known as RSA Public Key Cryptography" published in some book years
before the 1976 (re)discovery of the RSA cryptosystem by Rivest, Shamir,
and Adleman, it would have -- and clearly should have -- invalidated the
RSA patent under that rule.
So what do we get when Mr. Cordian finally chooses to reveal to a
curious List the source of his amazing report that the RSA public key
cryptosystem was actually published in the _19th_ Century?
Patrick J. Flinn! Hey, what a surprise!
As his hallowed source, Mr. Cordian cites a footnote from Flinn's
impassioned 1997 denunciation of the RSA patent in the Cyberlaw journal.
Read one-time Cylink attorney Flinn at
http://www.cyberlaw.com/rsa.html (and a brisk bare-knuckle retort from Bob
Haslam, RSADSI's attorney, at http://www.cyberlaw.com/rthrsa.html.)
Flinn led the team of patent and litigation lawyers that
represented Cylink Corporation in its suit against RSA Data Security Inc.
to determine the validity and scope of the RSA PKC patent after the breakup
of an early RSA/Cylink licensing partnership. In a separate case, Flinn's
team also represented Cylink and Stanford University against RSADSI in a
suit which sought to define the validity and scope of the so-called
Stanford patents: the Hellman-Merkle Patent and the Diffie-Hellman Patent.
Critics of Flinn's Cyberlaw article characterized him as a one-time
Cylink gunslinger who had already failed in several attempts to invalidate
the RSA patent -- and who was finally bounced from the case in 1996 when
Cylink decided that further litigation was futile and potentially
disasterous. Cylink subsequently negotiated the purchase of a license for
the RSA public key cryptosystem from RSADSI.
RSA's attorneys, as you might expect, rudely dismiss Flinn's
Cyberlaw list of potential vulnerabilities in the RSA patent. They point
out that Flinn's arguments are published, rather than heard in a courtroom,
just because those same arguments had failed to impress several judges and
hearing officers. "As a matter of fact," declared RSA attorney
Bob Haslam, "none of Mr. Flinn's three arguments about the supposed
invalidity of the RSA Patent have ever been remotely successful in actual
litigation."
Flinn's Cyberlaw presentation also drew notably unsympathetic
responses from the law profs and IP experts on the Cyberia mailing list,
although many seemed to admire his style and gall in publishing a case he
wasn't going to be allowed try. To its credit, Flinn's Cyberlaw article
didn't really try to be anything but a determined advocate's last-ditch
list of legal attacks that might -- with a good tailwind behind them --
potentially chip, limit, or even invalidate RSA's teflon-coated PKC patent.
For all that, the pretentions of Flinn's Cyberlaw footnote on 19th
Century Mathematics turned out to be _far, far_ less than what Mr. Cordian
had claimed.
Mr. Cordian must have discovered this when he went back and pulled
up his source data. Then -- to put it diplomatically -- Mr. Cordian seems
to have decided to flim-flam the List a little. Rather than admit an error,
a little over-enthusiasm in his recollection of the facts, Cordian decided
bluff it out.
He quoted for us only the beginning of Flinn's footnote, and he
ignored the rest of the footnoted text -- which, quite inconveniently for
him, seemed to directly refute his initial claim.
(A nymed net-gent like Mr. Cordian -- who hides his real identity
behind the Cordian pseudonym -- can perhaps risk his reputation a little
more carelessly than the rest of us. If he soils this one, after all, he
can just pony up for a new identity.)
Wrote Mr. Cordian:
>Quoting "Cyberlaw":
>
> "There are a number of references in the prior art, moreover,
> to using the problem of factoring composite numbers in
> cryptography, dating back to the 19th century.
>
> "In 1870, a book by William S. Jevons described the
> relationship of one-way functions to cryptography and went
> on to discuss specifically the factorization problem used
> to create the "trap-door" in the RSA system."
Actually, the first line of Cordian's quote is from the main text
of Flinn's article: http://www.cyberlaw.com/rsa.html. The second line is
from Flinn's Footnote # 64.
The _full_ text of Footnote # 64 reads as follows:
[64] In 1870, a book by William S. Jevons described the relationship of
one-way functions to cryptography and went on to discuss specifically the
factorization problem used to create the "trap-door" in the RSA system. In
July, 1996, one observer commented on the Jevons book in this way:
In his book The Principles of Science: A Treatise on Logic and Scientific
Method, written and published in the 1890's, William S. Jevons observed
that there are many situations where the 'direct' operation is relatively
easy, but the 'inverse' operation is significantly more difficult, One
example mentioned briefly is that enciphering (encryption) is easy while
deciphering (decryption) is not. In the same section of Chapter 7:
Introduction titled 'Induction an Inverse Operation', much more attention
is devoted to the principle that multiplication of integers is easy, but
finding the (prime) factors of the product is much harder. Thus, Jevons
anticipated a key feature of the RSA Algorithm for public key cryptography,
though he certainly did not invent the concept of public key cryptography.
Solomon W. Golomb, On Factoring Jevons' Number, CRYPTOLOGIA 243 (July 1996)
(emphasis added).
<End of quoted text.>
(The conflict between the 1870 and 1890 dates cited in different
paragraphs for the pub date of Jevon's "The Principles of Science" is as
published in the original Cyberlaw article. I have no explanation, but the
1870 date seems most likely. William Stanley Jevons, an astonishingly
prolific American economist, philosopher, and logician, was born 1835 and
died in 1882. He is probably the W.S. Jevons cited here, but I can't be
sure since I can't find this title among the list of Jevon's books in the
Library of Congress.)
The Cryptologia journal, unfortunately, is not yet available
on-line, and the Golomb article doesn't seems available elsewhere. Might
be worth digging that up. I'd love to read more of what Shannon Award
winner Sol Golomb had to say about the relationship between Jevon's 19th
Century mathematical research and public key cryptography.
I think it is appropriate to note, however, that Prof. Golomb did
_not_ conclude that the functionality of the RSA public key cryptosystem
was "obvious" to anyone familiar with Jevons' work.
Suerte,
_Vin
-----
"Cryptography is like literacy in the Dark Ages. Infinitely potent, for
good and ill... yet basically an intellectual construct, an idea, which by
its nature will resist efforts to restrict it to bureaucrats and others who
deem only themselves worthy of such Privilege."
_ A Thinking Man's Creed for Crypto _vbm.
* Vin McLellan + The Privacy Guild + <vin@shore.net> *
53 Nichols St., Chelsea, MA 02150 USA <617> 884-5548
- - -----
[One thoughtful response that made me pause to rethink some issues. _vbm]
From: "Brown, R Ken" <brownrk1@texaco.com>
Subject: RE: Rivest Patent
Date: Wed, 18 Nov 1998 11:12:37 -0600
Vin McLellan (or someone using his name), in an otherwise closely argued
posting, subtly missed the point with:
[...snip...]
> I was never impressed by the absolutist argument against
> patents on math-based processes. Mr. Cordian summarized
> this POV: "The fact that the [RSA] patent couldn't be
> successfully challenged even though its mathematical
> underpinnings were well known years prior reflects badly only
> upon the notion of mathematical patents, and hardly refutes the
> facts in evidence." By that logic, it seems to me, a basic
> knowledge of physics could invalidate almost all patents
> for mechanical inventions.)
> [...snip...]
>
The real point is surely that a patent for a device invented by someone
with a basic knowledge of physics is used to protect the *invention*
not the *knowledge*. They are not used to prevent anyone else inventing
another device using the same basic knowledge of physics.
Even if it is perfectly just for the RSA (or any other) patent "taken as
a whole" to be used to protect "not merely a disembodied mathematical
concept but rather a specific machine"; that *doesn''t* mean it is
neccessarily just to use the patent to protect that "disembodied
mathematical concept" when it is used in some other "specific machine".
But software patents *are* used to try to stop people employing the same
algorithms in other inventions. So, despite the ingenuous ruling of
the court they *are* being used to try to control "disembodied
mathematical concepts" - in other words ideas.
I have no idea if Watt had a patent on the steam governor. But I bet he
didn't try to take one out on Boyle's Law.
Ken Brown
-----
Vin McLellan + The Privacy Guild + <vin@shore.net>
53 Nichols St., Chelsea, MA 02150 USA <617> 884-5548
-- <@><@> --
The following archive was created by hippie-mail 7.98617-22 on Sat Apr 10 1999 - 01:17:18