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   Re: Software patent debate: we lose round one

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  • From: "David Brownell" <david-b@pacbell.net>
  • To: "Peter Murray-Rust" <peter@ursus.demon.co.uk>, <xml-dev@XML.ORG>
  • Date: Mon, 29 May 2000 15:30:02 +0100


> It should be clear from the discussion that the patent process is formal
> and that "written" documentation is a key part in establishing prior art.

Which curiously means that large chunks of "public domain" info
will hardly ever count as prior art ... as well as many "obvious
to persons skilled in the art" ideas.  Why bother writing them up?

(Even those who believe in software patents should be very concerned
that the patent office demonstrably does not have the qualifications
to evaluate obviousness -- anyone qualified would be foolish to try
earning a living in the patent office, for 1/5 the income they could
make in the private sector.)

> My purpose is to remind XML-DEV members of the importance of XML-DEV as
> an archive. Anything information published on XML-DEV is effectively in
> public domain (but not necessarily the IP it relates to).

Moreover, it's clearly "written".

> Ideas per se are not patentable - it is the expression or implementation
> of the idea - so records of this would be needed. As "moderator" I try to
> take a neutral stand, but if members wish to use.

One problem with the what the US PTO is doing is that the following
method appears to work in far too many cases.  In fact, most of the steps
have long been an "official" policy for writing up patent applications:

    - Take brilliant idea/process [ from the public domain ].

    - Provide boilerplate text describing computer systems, highlighting
      the hardware components making it a "machine"

    - Make the computer system implement that process, and variants.

    - Write up as a patent application.

    - Submit to US PTO.

    - When patent is returned, champagne all around:  you have just
      reduced the public domain, accomplishing your own "internet land

    - Just in case, prepare to defend this in court.

I'd be interested in seeing what the US PTO would do with this when it
gets captured in "Method and Apparatus for Creating Intellectual Property
through the US Patent System" patent and is formally submitted ... note
that this is the first public disclosure, so unless there's _written_
prior art (conversation over beer isn't enough!) I've a year yet before
my application needs to get filed ... ;-)

- Dave

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