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   RE: [xml-dev] Patent non-proliferation and disarmament

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From: Rick Jelliffe [mailto:ricko@allette.com.au]

> 1.  The web would not have emerged without non-royalty 
> based standards

> This is undecidable.  

>I don't think so. The WWW is a vaneer of access on top of the
>Internet, and the Internet is basically built on royalty-free 
>standards. If any one company had owned this access vaneer,
>other competitors would not have adopted it.  

The problem is that is speculation.   We don't know how that 
would have worked.  We have the counterexamples of PDF and 
MPEG, to name two, to show that such encumbered systems can 
succeed.   Patented technology shows up regularly in hardware 
and software.

>Also, the WWW is different from, say, CDs and the Phillips/Sony
>royalty, because that is basically a hardware patent not software.
>The WWW is not as much a medium as it is content. 

That sidesteps the question.  Is anyone patenting content?  Copyrights, 
yes, but not patents.  And licensed content does get used in this 

> 2.  The open source community health is of vital importance
> to the success of the web.   
> This is undecidable.

>It depends on what you mean by success.  What if
>open source (and free) community health *is* the metric of the
>success of the web, or if free access to information is?

>As with vaccines so with standards: the amount that
>a technology ican be used to make a buck is not a sign of
>its successfulness.   

Beauty is in the eye of the beholder.  The owner has to 
choose what is "success".  The open source community has 
one idea, and I don't know if that is what is most "healthy" 
about the web.  It is yet another economic model for 
creating software.  It is the content I go to the web for. 
If I personally had to pay a toll for every site I visited, 
I agree, it would not have taken off.   But I don't do that 
for listening to the radio.  Someone does.   The problem here 
is that a business model for "free content" wasn't required 
to start the web.  It may be required for some content markets.
Again, open source is one economic model.  It need not be a 
privileged one.

> 3.  "process of standards creation should not be contorted, 
> subverted, and otherwise compromised by the private goals of 
> individuals or companies seeking to incorporate their patented 
> ideas into public standards"
> This is paranoia.

>Yes, it is not the patent per se, but whether the patent is effectively
>handed over to the community.  But it is not paranoid.  As a 
>software developer, I have to waste a deal of time doing 
>patent searches to make sure that I am not infringing: Adobe's
>latest success in the MacroMedia case is a good example --
>it is just plain wrong for the US legal system to grant world
>monopoly rights on simple combinations of widgets.  When I
>am king of the world, I will revoke all patents which were
>not the result of more than three years and $5,000,000 research.

That's a good example of why this is a frustrating issue. 
First, the USPTO is not the only patent organization in need 
of overhaul.  The Europeans have similar problems.  What the 
US has is the resources to sustain research such that it is 
spawning innovation at a high enough rate to be very noticeable. 
Patents make it not only noticeable, but out of reach for some. 
Adobe is one.  We also had to fight Intel.  It wasn't pleasant 
and it certainly wasn't cheap but we held out and survived. 

And another "us vs them" was that comment in Robin's article 
about "West Coast vs East Coast" coders.  See it once, and heck
yes, an idea becomes "obvious" but not unpatentable.  From 
the POV of a company that had to take on the West Coast, and 
won, one can say it is a culture that spawned not intellectual 
freedom, but piracy.   There is a marked difference between 
taking ships to colonize a new world (while knocking off the 
natives) and taking them to roam the seas in search of booty 
to finance empire building.

>> 4.  "unsustainable patents are increasing at an alarming rate, 
>> swelling the patent portfolios of large companies dedicated to 
>> stockpiling their arsenals of (they say) "defensive patents." 
>> The first part of this is only decidable if the criteria for 
>> "unsustainable" can be enumerated.

>How about all software patents, for a start!

Where they can be shown to be unreasonable, yes.  Again, 
how can the resources and technology of the web be used? 
What say, would the RDF classification systems of the 
Semantic Web contribute?

>> The second part is paranoia.  There is not proof that any 
>> companies large or small or individual are "dedicated" to 
>> stockpiling patents.   Observation of behaviors does not 
>> constitute proof of intent.

>Well, I used to work for a US company who decided, at one stage,
>not to persue its manufacturing and sales arms to concentrate
>on getting revenue from its patents.  And wasn't it Amazon who
>had a strategy of grabbing as many patents as it could.  I have
>been involved in some patent discussions recently, and the lawyers
>definitely told me that one reason to get patents was to ward off
>attack from other patents: if your product infringes their patent, 
>then probably their product will infringe yours, so you can cross-license
>out of it.

And how will a judge or a lowly patent clerk sort that out? 
Getting revenue from patents is smart business.   Filing 
unreasonable patents is not.  

> 4.  "implementation of open standards should not be impeded by 
> negative incentives arising from the legal requirement..."
> The law is the law.

>The US law is not the rest of the world's law.  But the size of
>the US market forces consideration of US law everywhere.

Again, "us vs them".  This is one more example of why that 
article IS polarizing.

>> o RAND will stifle innovation and reduce choice 
>> This is paranoia.

>Surely you cannot be serious, Len.  When there is only one
>known way to move forward, and that way is impeded,
>innovation must be stifled.  Only when there are multiple
>ways to move forward, then impediments to the primary
>route will trigger innovation on other fronts. 

Often innovation comes of finding another way forward.  We 
are a lot more likely to orbit suboptimal minima in a situation 
where the only choice is that the technology be "standard". 
RAND says, "these are the terms under which you may 
use my property in your standard".  I have already stated 
that I think open standards are better; they just aren't 
the only way forward in every situation, and the claims 
that the web could not have emerged with patents involved 
is bogus.  It did and there is plenty of patented technology 
being used.

I can't think of too many situations where there is only 
one "known" way.  Sometimes there is only one "approved" 
way and that is why multiple authorities are of value. 
The real problem is "unreasonable" patents and that alone 
does not justify a full-frontal assault on intellectual 
property and a deification by acclamation of open source, 
open standards, or the divine rights of the W3C, ISO, ECMA 
or whoever to demand that such rights be ignored.



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