Re: XPointer and the '729 patent

[Aaron Swartz <aswartz@swartzfam.com>]

Eve, while I am certain that you personally mean the best, I have reason to
suspect that some of the patent lawyers at Sun are not being has helpful as
they could be. After discussing this issue with a patent-attorney friend of
mine, he explained that it seemed unlikely that Sun was truly trying its
best to assist the W3C in this matter.

He explained that there is a simple, inexpensive procedure called dedicating
a patent to the public domain. This will permanently prevent enforcement of
the patent, while still allowing it to be cited as prior art for future
patents. It seems that this solution is a win for everyone. Sun could easily
dedicate the patent by filing a few forms with the Patent Office. This would
solve all of the problems.

Eve L. Maler <eve.maler@east.sun.com> wrote:

> 1 Request a reexamination of the '729 Patent at our own expense.
> 
> As part of the reexamination, we request that you provide us with
> any prior art of which you are aware so that Sun may submit any
> relevant prior art to the U.S. Patent Office.

Now why would Sun want to request reexamination, when this other option is
available to them? It turns out that a company often will have their own
patents reexamined -- but not to invalidate them. Instead, they will attempt
to make their patents stronger. When a patent passes reexamination, a judge
is much more likely to believe in the validity of the patent, and thus rule
in favor of the patent owner. Thus, it seems likely that Sun may actually
wish to strengthen their patent by this process.

> 2 Consider specific requests for changes to the terms.
> 
> In order to accommodate the concerns of the development community,
> we are willing to consider alternative terms.  We have already
> received some comments along these lines, and additional comments
> are welcome.

It also seems unacceptable that Sun require any company that implements
XPointer to relinquish their patent rights. This nonsensical clause will
have the effect that no large companies will adopt the XPointer standard,
because their patents are too important to them.

It seems that the only fair solution is for Sun to dedicate their patent to
the public domain. Anything less would be cheating the W3C and the XML
community.

-- 
[ Aaron Swartz | me@aaronsw.com | http://www.aaronsw.com ]