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Dennis Sosnoski wrote:
> the widespread industry support for Microsoft in this
> action
From what I read, I see neither an indication of nor a
requirement for "support for Microsoft" in the actions of the W3C or
any of the other people who helped build the case against the Eolas
patent. The patent was a bad one and any "good thinking" person should
have done whatever they could to help *anyone* defend against this
patent. The fact that Microsoft was involved should be irrelevant.
(It's sort of like when the ACLU defended the right of Nazi's to march
in Skokie, IL... I guarantee you that no one on the ACLU team thought
kindly of the Nazi's -- no matter how hard they fought for their
rights. But, they were fighting for the "right" not for the Nazi's.
(No, I do not think Microsoft is like the Nazi's... Not even close.)
> this action has had the unfortunate side effect of helping
> to preserve the status quo in the U.S. Patent Office. Supporters
> of the bureaucracy will be able to point to Eolas as an example
> of how the existing system really *does* work - "Sure, a bad
> patent may slip through every now and then, but when it does
> it'll be corrected by the system."
An alternate view would see this result as potentially
invigorating those who oppose bad patents by reminding them that
petitioning for reexamination can be useful. All too often, the
community is well aware that there are bad patents but basically
cowers in silence waiting for someone else to be sued. It is, I think,
not coincidental that the many lawyers who counsel against attempts to
petition for reexamination are fully aware that they can earn
massively higher fees defending a patent in court then they can by
simply preparing a petition for reexamination...
The existing process offers many, almost universally ignored,
mechanisms to prevent and defeat bad patents. There is, for instance,
the rarely used opportunity to file prior art with the examiner within
60 days of an application's publication. There is also a process,
exploiting the "duty of candor", in which an inventor can be forced to
submit prior-art to the examiner after the 60 day period. (This is
virtually never used.) There is the process for demanding
reexamination -- but only a few thousand such petitions are filed each
year and most of those are simply "pro forma" petitions that are
half-heartedly filed as part of defending a suit of infringement.
There is also the opportunity, that I've mentioned before, of filing a
Statutory Invention Registration in order to block patents. And, there
are a number of mechanisms for filing disclosures with the patent
office to ensure that prior-art is in their libraries.
With all the means available for defending against bad
patents, the common path is to cover one's eyes and ignore the problem
until a suit is filed. People complain endlessly, but do nothing.
Hopefully, this case will show at least some people that as broken as
the system may be, there are still some tools available to fight back
with. Of course, we need more... But, we should still use what we've
got.
bob wyman
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