Re: Software Patent Concerns => New Black Markets?

[patentguy@huter.us (Patent Guy)]

"Warren W. Gay VE3WWG" <ve3wwg@cogeco.ca> wrote in message news:<zWT%a.4145$q9.237570@read1.cgocable.net>...
> "Robert C. Leif" <rleif@rleif.com> wrote in message news:mailman.21.1061147150.299.comp.lang.ada@ada.eu.org...
> > The US patent law permits a prior art defense. Thus, if you are correct, the
> > expert witnesses should do very well. In the US, an inventor swears to the
> > correctness of his/her patent application.
> 
> The fact that independently developed software can wind up in a
> patent dispute, is all by itself very much a concern to me. In a
> business with capital investment, this is a drain and
> inconvenience (perhaps a serious one).
> 
> But for the free software developer, this is a complete nightmare. So
> even if there is a "defence", it is one that comes at a great cost.
> 
> The net effect will be that free software developers will either
> start to contribute anonymously, or will work around the legal
> system (at least once the infringement is discovered). The path
> of least resistance will be not to bother at all, since the
> perceived risk will be too much. This too me is the greatest
> crime of all possible outcomes.

I am a patent attorney for a major hardware company which files many
software patents each year and has released subtantial code under OSS
licenses.  I'm also a computer hobbiest and am working on a couple of
projects which I plan to release under a BSD style license once they
are a bit more mature.  As a result, I believe I have a unique view on
software patents.  Please, note that the following are my personal
views and may not reflect the views of my employer.

I do agree that software patents present problems for
hobbiest/non-commercial developers.  However, I also believe that
abolishing software patents is unworkable.  My experience has been
that people who greatly oppose software patents generally do not have
a problem with hardware patents.  The problem is that most patents can
not easily be classified as a software patent or a hardware patent.  I
beleive there is a law/thereom/postulate/etc. that basically says
functionality that can be implemented in software can be implemented
in hardware and visa versa.  Take an MPEG codec for example.  There
are software codecs and hardware codecs.  If some one comes up with an
invention that greatly increases the compression of a MPEG stream, I
see no reason why that inventor should not be able to obtain rights in
harware, software, and hardware/software implementations of his
advancement in the art.

I believe the difference with software as compared to other industries
is that there is substantial non-commercial and hobbiest activity
which benefits the public at large.  So in my opinion is the key
question is how to we retain the benefits of non-commercial and
hobbiest activities without abolishing software patents?  I personally
think the best way is to lobby Congress for some type of
non-commercial/hobbiest defense to patent infringement.

Apparantly, there has been some success in this approach in the past. 
The most pertinent part of 35 USC 286(c)(1) states;

With respect to a medical practitioner&#8217;s performance of a
medical activity that constitutes an infringement under section 271(a)
or (b) of this title,
the provisions of sections 281, 283, 284, and 285 of this title shall
not apply against the medical practitioner or against a related health
care entity with respect to such medical activity.

281 - Says patentee has a civil action remedy for patent infringemnt
283 - Provides injunctive relief
284 - Provides monetary damages
285 - Provides attorneys fees

My understanding of this section is that it basically protects for
example a surgeon that performs a patentable procedure (e.g. a heart
by-pass).  I believe a similar approach could be used to protect the
developers and users of open source/non-commercial software.  If
drafted appropriately such a provision may even provide a carrot for
companies to open source some of their software to avoid potential
patent issues.

> 
> The other issue at stake here is when the patent office (on any
> continent), allows a wide ranging patent to be granted. Look at
> the ones that have been in the news, ranging from web links to
> 1-click shopping. Currently small e-shops are caving in and paying
> the blackmail, since it is cheaper than going to court.
> 

I really do not have a problem with the 1-click patent.  There are
many simple inventions that have been patented.  Also, in my opinion,
patents are very important for simple inventions.  Since they are
simple, every one and their brother can implement them once the
invention becomes known to the public.  Patents provide really the
only protection for such inventions.  There is a famous old patent
case involving a paper making machine.  There was a problem in the
industry that the paper coming off the rolls would break if the
machine was speed-up.  Many people tried to solve the problem without
success.  Then someone came-up with the idea to increase the incline
of the slurry hopper thus increasing the flow rate of slurry into the
machine.  Problem solved.  The issue was whether it was obvious.  The
courts ultimately decided it was not obvious.  The problem with simple
inventions is that they often look obvious in hindsight.  However,
many times the invention really is the identfication of the problem
(e.g. flow rate not fast enough).  Once the problem is identified the
solution is simple (e.g. increase incline of slurry hopper).

Also, most simple inventions are easily avoided.  For example, use a
2-click ordering system instead of a 1-click ordering system.  If you
really derive that much benefit from the removal of that extra click,
then you really are just strengthening the argument that it is
valuable and that should be protectable (assuming it is new).  Note:
my understanding of the 1-click patent is that much prior art applied
against the patent.  While many were close none showed a true 1-click
system.  Is it possible that Amazon was the first to develop 1-click
ordering and that all of fan fare is a result of people thinking
simple inventions should not be patentable?  I personally think that
the patent system is doing its best when it is protecting simple and
highly valuable inventions.


> This really bites my friends!
> 
> > If a deliberate falsehood is
> > included in an application, in principle, perjury charges can be brought.
> > Unfortunately, this tactic does not seem to be used. However, it would serve
> > as a strong deterrent to prevent the abuses that you and others have
> > described.
> 
> These types of deterents only work when the expense and hassle
> of going to court are undertaken. Even then, I'd have to question
> the practicality of making certain charges (you need strong proof,
> which is not always possible).
> 
> > I would favor changes to the patent law that would require mandatory
> > licensing for truly generic patents.
> 
> I'm not sure I understand this. How does this help? If you're talking
> about a maintenance fee for held patents, this only keeps out a few
> small fish. This doesn't stop the large corporations.
> 
> > I might note to those of you who are
> > members of the European Economic Community, that the sum of your individual
> > national patent costs is much greater than that of the US. Thus, both your
> > own and the US inventors are being ripped off.
> >
> > Bob Leif