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   Re: [xml-dev] Another Microsoft XML patent

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For what it's worth, my disgust here is primarily with the USPTO, which 
  doesn't seem to have the expertise, wherewithall, or inclination to 
determine prior art or obviousness for software patents. (Goodness only 
knows how obviousness is defined. What's obvious to one person is magic 
to another.)

As Michael points out, this presents the software community with a 
pretty nasty Catch-22. If they don't patent, they expose themselves to 
risk. If they do patent, they expose everybody else.

-- Ron

Michael Champion wrote:

> On 6/5/05, M. David Peterson <m.david.x2x2x@gmail.com> wrote:
>>I doubt any official or non official comment could (or should) be made
>>by an MS blue badge 
> Ignoring Mr. Peterson's sound advice ..... :-) I'm not going to touch
> the legal issues or the specific patent discussion here other than to
> say that people really need to do some searching on the general
> subject of patents and the software industry before getting all worked
> up about individual patents of the sort that pretty much all the big
> companies get on a regular basis.  I think you'll find a lot more "dog
> bites gorilla" stories than "gorilla stomps on poor widdul puppy"
> scenarios that  some of the posts in this thread speculate about.
>  From what I recall, and from what I came up with in some quick
> Googling, there are far, far more lawsuits by little companies (often
> those whose only asset is some IP they have purchased) against the big
> companies than actual examples of big companies using dodgy patents to
> crush the competition.
>  The reality today is that the major companies are generally *targets*
> of IP lawsuits. [I claim no expertise here ... counter examples are
> welcome]  For example,  see
> http://www.eweek.com/article2/0,1759,1661094,00.asp "We think part of
> that is the phenomenon that many companies that did not survive the
> burst of the dot-com bubble were left with nothing but a portfolio of
> patents from which to make money."  One example about which I know a
> little: The company that developed the terminal applet that ships with
> Windows and whose tidy niche in selling terminal emulation software
> for the BBS systems of the 80's and '90s was destroyed by the
> internet, got more than $60 million from Symantec after years of
> litigation over a very broad patent on virus filtering during file
> transfer  http://www.techworld.com/news/index.cfm?fuseaction=displaynews&NewsID=376.
> Note that they never accused Symantec of stealing their (primitive and
> no-longer-effective) technique; their patent covered essentially the
> very concept of virus filtering during file transfer.  The real
> villian is the USPTO for ever issuing such a broad patent on a fairly
> obvious idea that many people came up with more or less
> simultaneously.  (The others never dreamed that the idea was
> patentable, I guess).
>  It's quite true that IBM gets a very big chunk of money from
> licensing its IP portfolio (1-2 billion $ per year?) and the other big
> companies wish they could as well.  All major software companies AFAIK
>  encourage their employees to submit patent applications when they
> come up with what appears to be a novel, non-obvious, and useful
> technique.  Whether these are actually patentable is the USPTO's
> business to determine.  If the patent in question is indeed bogus,
> look to the USPTO's incompetence, not some evil plotting, for the
> source of the problem.
> Even patents that aren't plausible money-makers on the IP licensing
> market can be very valuable to companies as *defenses* against
> nuisance lawsuits.  Look at IBM's counterclaims against  "The SCO
> Group" -- lots of patent infringement claims that IBM could not
> plausibly initiate against a competitor, but are fair game to use
> against lawsuit scammers.   The best defense in these cases is a good
> offense.  "You are suing us for infringing your patent on hashtables,
> eh?  Well, you're infringing our patents on half of Computer Science
> 101 and here's a 1000-page countersuit."  Deep sigh.


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