Re: Software Patent Concerns => New Black Markets?

[patentguy@huter.us (Patent Guy)]

"Warren W. Gay VE3WWG" <ve3wwg@cogeco.ca> wrote in message news:<INN0b.5088$HB4.908348@news20.bellglobal.com>...

> >>This is surely an interesting example. But I would suggest that
> >>it requires hardware to "use" MPEG codecs, even for a fully
> >>software implementation (no software runs without hardware!)
"Fair use" is a copyright concept.  No similar concept exists for patents.

> This is one of the things I suspected, and don't like. I find
> this scenario similar to the copyrighted material WRT backup
> copies (like cassette music tapes). I think this is an example
> of fair use, and it should be stated in law that way.
> 
> The fact that no one is likely to come after you, is not really
> the point.
Understandable.

> >>What about DVD decoders on Linux? There is a real _need_
> >>for such, and the motion picture industry does not want
> >>to provide any such thing for Linux. What choice
> >>do the Linux users have? The only legal choice is not
> >>to view DVDs under Linux. But many feel this is going
> >>too far.

Develop a licensed DVD decoder for Linux.  The problem is there is
likely to be a royalty for the license thus necessitating charging Linux
users a fee for the DVD decoder.  I suspect the current market of Linux
users willing to pay for a DVD decoder is large enough for a company to
expend the resources.

> > 
> > The problem here from my understanding is the DMCA (copyright) and not
> > patents.
> 
> But they have tried to outlaw the code that decodes it. So this
> goes beyond copyright infringement, because after all, the
> same process must occur under Windows to view DVDs.

Nope.  It's a copyright and DMCA copy protection issue.  You need a key
to decrypt DVDs.  Only licensed software has the key.  Many licensed
software players exist for Windows.  Only unlicensed software players
with misappropriated keys (Movie Industry stance) exist for Linux.
(However, over a year ago, there was some press regarding a licensed
player for Linux, but I don't no the current status of this player.)

> 
> >>I have trouble agreeing that simple ideas need to be protected
> >>in the first place.
> > 
> > Let's say you came-up with a great idea for a toy.  With proper
> > marketing, distribution, etc you you could make millions on the toy. 
> > However, the toy is simple to make and once Milton Bradley or one of
> > the other toy makers notices your success they will be able to
> > undercut you and grab the whole market.  Without a patent, you are
> > basically screwed because there isn't much you can do to stop the
> > other manufacturers from appropriating your idea.  Do you still think
> > simple ideas should not be patentable.
> 
> Yes, simple ideas should not be patentable.
> 
> Firstly, you wouldn't do the whole 9 yards on the simple toy,
> for the obvious reasons you meantioned. If you did, then you
> would do it differently to reduce your risk (ie. competition
> is good).

You're a better man than me.  I'd feel cheated.  Without some sort of
protection you simply can not successfully develop a business or
licensing plan to extract value from your idea.  Once you have some
success others with more resources will take the market.  In the end,
you are very likely only to lose money on the deal while others profit.
As a result, why even bother pursuing your idea at all?  The patent
system was designed to give you an incentive to bring your ideas to
market.

> 
> This would also free the patent office from having to mess
> with trivial matters, and focus on the truly deserving items.

The problem is how do you measure trivial.  What's trivial to me is not
necessarily trivial to you and visa versa.  Also, what appears to be a
dumb idea at first blush may actaully be quite valuable.  Breathe-right
strips come to mind.  The first time I saw these I laughed.  But they
work and there is a decent market for them.

> But I'll have to admit, that some processes like MPEG codecs
> may well represent a class of worthy patentable algorithms
> (I need to ponder this more).  But 20 years(?), if that is
> how long it is, is much too long!

Then you must hate the copyright term which is on the order of 100
years.  In that light 20 years is not atrocious.  Also, if the copyright
on software were only 20 years, then there is a lot of software from the
1980's that would be in the public domain by now.  For example, early
arcade game ROMS would be in the public domain thus allowing you to
legally run them on an emulator (e.g. MAME).

One problem we have is a one size fits all patent term. 20 years may be
too long for software but may be too short of genetic or pharmaceutical
inventions.  In these later fields, the patent may expire before
economical uses are found for the inventions or before they recoup their
R&D costs.   However, I think having a different patent term for
different types of inventions would be unworkable.  It is more practical
to have a common patent term that on a whole accomplishes its goals.

> 
> I think that the real issue most people have with software
> patents (and in general), is whether or not a patent award
> was worthy or not. From what I read, I don't believe that
> the patent office is doing a very good job of this. How can
> they? If they were software experts, they'd probably be
> employed in software! It's like the Radio Shack guy behind
> the counter knowing about electronics. If he really did,
> he'd be employed in the field.
> 
> So if a patent office cannot properly administer software
> patents, I would say that the system needs to be
> scrapped. But I recognize that this is unlikely.

This is a quality issue which spans all technology areas.  A lot of
patents are issuing that should never issue regardless of technology
area.  The US patent office has taken some steps recently to improve
the quality of issued patents and plans to take further steps.  Only
time will tell whether they are able to improve quality.