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   RE: [xml-dev] Patents

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From: arg@ubiquity.be [mailto:arg@ubiquity.be]

>"The Bush administration has proposed boosting Patent Office funding by 21
>percent, far above the average nondefense agency increase of 3 percent or

>Therefore, the "solution" to a 25-month patent backlog is apparently to
>throw more money and resources at it, not to fundamentally reform the flawed
>patenting process into a more sensible solution, right ? 

That's part of it, the immediate stuff.  I know someone who works there and 
says that backlog and the lack of deep technical knowledge are the two 
major problems for sorting out patents.  If you toss a technical community in 
that likes to claim it invents things it only modified, renames them, then 
tells the press what wonders they are, then I'm sorry, we get to take part 
of the blame.  I've said this before and I repeat it here:  the software 
titans are playing games we set examples for here on The Web.   That is 
why I go on about fastidious history.  Without it, things like the BT 
patent get passed.

>I would personally
>start with a heavy fine against the abusers who try to sneak in blatantly
>silly or obscene ideas - obscenity as in "patenting the human genome", not
>as in "possibly patentable porn ideas". I hope you don't have any of these,
>Len ?

No, I patented breathing.  Expect mail from my lawyers.

>>  This is beginning to look
>> like an election issue.

>Seriously, I
>think it is overall beneficial that we have these controversies in the press
>or the U.S. Congress or the European Parliament, or possibly even in places
>where political decisions are taken. 

TimBL went on record saying that some form of legal assistance is needed.  I agree.

But again, folks, this will come down to campaigning and "who do you believe" 
unless we are very scrupulous.   That SUN patent stood because no one at the 
W3C stood up to fight it.  Justice is blind (and sometimes deaf too).  If we 
play favorites in this game, if we let the cost of the defense be the sole 
discriminator, we are hosed.  What these guys are doing is legal.  What we 
have done is stupid.

>Only that can ensure that these issues
>are not decided upon behind our collective back. If that is not enough, some
>form of civil disobedience, whether by individuals or companies, might also

No that just makes stupidity popular.  We have to fix the systems and we 
have to quit feeding them hype-laced caca in the name of marketing. 

>Purely rhetorical question: if tomorrow a company obtained a U.S.
>patent giving them some toll right on the Internet, what could they actually
>do with it in practice ? It would be impossible to enforce unless Dubya
>raises the Justice budget to Defense-like levels - let's not even mention
>the "outside the U.S." scenario...

Ummm... Have you ever looked into MPEG, patent pools, and the like? 
They don't enforce it like sending out an army.  They litigate you 
into bankruptcy, seize assets, and make off with it unless you have 
the cahones to stand there and fight.  It can be ruinous.  We had 
to lose a division to fight Intel, but in the end, we stood up to 
it.  We do own those patents.  It cost us dearly.

But note two sides:  one, protect intellectual property because 
without property rights, none of the rest matter.  Two, ensure 
that property claims are legitimate.  For that, documentation 
counts.  The patent office cannot do everything.

>So, I'm not really scared by the idea of an IBM or Microsoft placing a
>tollbooth over "the Web" (T.M.)  or on every Internet-based business
>transaction. Surely Gates and Ballmer haved phantasized someday about that
>while doing the baboon dance on a stage and getting the ensuing testosterone
>boost, but it seems to be beyond their reach. 

Again, wrong approach.  They don't feel those insults and they might 
be the very people who can help turn this around by coming to understand 
the business model is bad in the long term.   MS and IBM are not the 
enemy.  There is no enemy.  We have a systemic problem of not being able 
to enforce RAND and not being able to identify bogus patents.  We made 
this worse by being an industry incapable of remembering history and 
rewriting it conveniently.  The people in the patent offices are not 
superhuman or stupid: they are overworked, underfunded, and not capable 
of finding facts in an environment where due dilligence on prior art 

I'd be horsewhipped before I'd turn all of this over to the W3C.  The 
plea for a "strong man, a single organization" is possibly the stupidest 
thing I've seen on the web.  It is as if people like Berlind can't reason 
because they can't remember.  That isn't the way to get it done.  Put 
the W3C inside a set of relationships with ISO as the outer wheel.  That 
puts the right people with the right skills in the right jobs.

>We should probably not get
>distracted by the most improbable scenarios, but keep the more probable one
>under close scrutiny - do we know what they really are ? .Net MyServices was
>among the possible ones until various feedback loops sent it back a few
>times to the business model drawing board. It will come back.

If we focus on patents, the issue is to make the system work and 
to reform it if needed.  What does it take to do that?  First, 
truth about technical innovation.  Second, resources to find 
that.  Third, organizations capable of making agreements at 
the level of nation-states, not vendors.  Then we have to be 

>> Conserve options.  This is when you need them.

>Yes, but which ones should we focus on, then ? It's impractical to keep all
>of them open, I noticed.

One's that enable us to choose other technologies when the ones in 
place aren't workable for whatever reason.  That means we have to quit 
calling specifications "standards".  One's that enable us to go to 
a different legislative authority when a consortium's members begin 
to violate agreements.

>Another article I just saw:

There are so many problems with what he says I can't even reply.

This won't be solved with the "get the villagers and pitchforks and 
let's go slay the monster in the windmill".  In this community, 
before they got up the hill, half would be redesigning the pitchforks 
and calling that invention, and the rest would be tilting.

This one is beyond the power of the Internet, the W3C, or the lists. 
It goes to court and to the governments.  I'd suggest we get back 
on good terms with ISO and quit thinking the MIT brain trust has the 
answers.  They aren't qualified or skilled for this kind of work.

It requires lawyers.



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