Re: [xml-dev] Microsoft Patents Serializing Objects To XML And Sending Them Over A Network

[Alan Gutierrez <alan-xml-dev@engrm.com>]

* Gavin Thomas Nicol <gtn@rbii.com> [2005-05-27 21:41]:
> 
> On May 27, 2005, at 1:56 PM, Gerald Bauer wrote:
> >   Any thoughts? Any comments?
> 
> Apart from the huge amount of prior art? The same can be said of  
> embedding scripts in XML... huge volume of prior art.

    On prior art.

    When software patents come up in newsgroups, we often talk about
    prior art. Here there is talk about Castor in 2000.

    The idea is that it would be easy to shoot this down in court
    because of the obvoius prior art. (I know you didn't say this
    Gavin, I'm not putting words in your post, just looking for a
    place to chime in on the topic.)

    Except that a lawsuit argued in the federal courts is never easy.

    If you are small software firm, or worse, an individual, your
    day in court will cost tens of thousands. The threat of
    litigation will put an end to your customer and investor
    relationships. Your product will not have the revenue to make
    the prior art agrument.
    
    Legalities are unpleasant. No customer would want to find the
    software they licensed under an injunction, or find that they
    share liability for a patent violation. At the very least, who
    want's to deal with a immediate, forced upgrade to remove
    infringing code?

    The existence of prior art is nice. Now imagine explaining this
    to a jury of your peers, some of whom might be self-professed
    "computer-illiterates" who are learning about software for the
    first time, from lawyers.

    It won't be one patent violation either, a larger firm will
    strike with a handful of these things. A judge or jury might
    decide to uphold a half of them, just to fair.

    Again, I know that people here have a grip on the threat, but I
    thought I'd point out that just because it's obvious, doens't
    mean you can't go bankrupt illustrating the obvious. That the
    risk is real, and it imposes real costs on doing business. 

--
Alan Gutierrez - alan@engrm.com
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