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   RE: [xml-dev] Patents, schmatents (was: hi)

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Claude L Bullard wrote:
> I know the current results are fouled up.  I don't 
> think we appreciate the depth of how hard it is 
> to be examiners.  I know that most of the serious 
> people in our field are becoming more acquainted 
> with IP laws and processes.
	One thing we can do to "fix" the system is to use it. Frankly,
the way people think about patents is, in my opinion, one of the
biggest problems with the patent system. What we've got is a system
that might be merely "bad" if we all took it seriously, but is a
disaster, because we don't. Think about the current "patent culture":
	1. "Real coders don't read patents." The idea is that if you
read patents, you'll become "tainted." There is some truth to this
since if you are aware of a patent or patent application and later
infringe it, the damages you pay can be increased due to "willful
infringement" rather than simple infringement. However, those who seek
to avoid the higher penalties of willful infringement are paying a
great cost -- i.e. increased risk of simple infringement, failure to
keep up to date with new technologies, etc. Many bad patents float
through the system for years and are used to pick off one company
after another simply because so few people keep track of what is being
	2. Virtually no one takes advantage of the 60 day window after
a patent application is published to challenge the patent by
submitting prior art. If we were rational, what we'd have is people
posting notes about suspect new patent applications the moment they
are published and then discussion of prior art on lists like this one.
(Immediately, hundreds of "ignorance is bliss" types said: "Oh, No!".)
Nonetheless, the public review period is there but is virtually
	3. There is a process defined for requesting re-examination of
patents. It is virtually unused. Also, it has often been noted that
re-examination results in massively lower legal fees than result from
more traditional trial-oriented legal tactics...
	4. There is an excessive focus on defeating patents based on
precisely matching prior art. The concepts of what is "obvious" or
"useful" or "innovative" have been virtually driven from the patent
law system. In part, this is because of legitimate problems with
interpretation, but also it is because it is massively easier for
lawyers and cheaper for clients to use prior art than to argue the
law. For instance, in other notes, I've discussed the idea that we
should object to patents that have claims based on specific formats
(like HTML or XML) or protocols (like TCP/IP or SIP) when there exists
prior art that made the method obvious without use of the specific
format and/or protocol. However, virtually any lawyer fighting
infringement in such a case is going to look for prior art -- rather
than argue the law. The result is that the principles of the system
are being slowly lost from disuse. It doesn't help to defeat a single
patent when what we should be doing is eliminating a whole class of
	5. The lawyers simply don't understand technology. I have some
experience with some of the largest US law firms that "specialize" in
software patents and are proud that they have "engineers" working for
them. Well, the engineers are often folk with civil or electrical
engineering backgrounds or something similar who took a programming
course in college. Even most of the lawyers who actually studied
Computer Science in school haven't risen from the "programmer" level
to the "architect" level that is vital to be useful in discussing
software patents. Thus, it's easy to convince these guys that
something is new and its hard to get them to understand what is
	6. The open source world doesn't understand patents!
Supposedly, they think that it would be wrong to claim rights to
something that should be open. Often, I hear people ask form something
like an "Open Commons Patent"... Well, there *is* a specific process
defined in US law to get something like a open patent. It is called a
"Statutory Invention Registration. (SIR)" It has all the force of a
patent except that it grants no exclusive rights. Thus, you can use it
to disclose and protect from patenting anything which is patentable. A
SIR explicitly denies all claims to exclusive rights and ensures that
they can't be given to anyone else. (You even get a nice document to
hang on the wall!). We should be protecting open ideas with open
patents. Yes, SIR!
	7. Most patent applications are published 18 months after they
are filed and prior to their being granted. Very few people read the
things. However, even after the 60 day window for public submission of
prior art, there are many ways to attack a bad patent before it is
granted. (But, every lawyer will tell you to "Wait and see if we get
sued...") For instance, an inventor and his agents have a "duty of
candor" to report all material information to the patent examiner.
Thus, if you send a notice to the inventor, his lawyer, etc. clearly
outlining prior art, obviousness, etc. they are compelled to send it
to the examiner even though you can't directly. If the patent is
granted and you can later prove that the information would have been
considered material (but not necessarily conclusive evidence of
unpatentablility) yet it wasn't submitted by the inventor to the
examiner, you can get the patent thrown out because of the inventor's
failure in the "duty of candor." 
	8. We've got boatloads of righteous idiots who spend all day
complaining about the system but don't do squat to even try to fix it,
work within it, etc. ...

	Sure, the system sucks. But what sucks more is the fact that
we let it keep sucking. 

		bob wyman


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