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   Re: [xml-dev] Another Microsoft XML patent

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On 6/6/05, Alan Gutierrez <alan-xml-dev@engrm.com> wrote:

>     This notion of mututually assured distruction is one that
>     interests me. If frivolous patent infringment claims are met
>     with like frivolous patent infringment claims, it makes the
>     pursuit of such litigation unprofitable.

Yes, I was thinking of the nuclear analogy.  It's true that among
major powers, nobody can write a hundred lines of interesting code
without infringing a patent, but nobody can sue for infringement
because they also infringe some other patents.   A serious patent war
would set off the Doomsday Machine.  (Actually, massive cross
licensing is the norm AFAIK so the Doomsday Machine is pretty well
deactivated among big companies).

BUT there are a bunch of companies  that have nothing but patents to
sell (the ballistic missile submarines), so it's hard to strike back,
and a bunch of companies such as The SCO Group (the North Koreas) that
have destroyed themselves so thoroughly that there's not much point in
threatening to finish the job.  That's what everyone worries about --
random attacks from the un-deterrable -- not the legal equivalent of
World War III.
>     If the USPTO does issue patents for ideas that are not original,
>     or are quite obivous, I wounldn't mind so much, if they were
>     handing them out at a price that individuals and small firms
>     could afford.

But there are plenty of small firms with "nuclear" patents.  That's
why I mentioned the small company which used patent greenmail  against
Symantec for $62.5M.

>     I've often thought of some sort of patent union for small
>     firms, open source developers, a treaty organization. 

It would probably be inappropriate for me to comment, but that's
consistent with my point in jumping into this thread: Don't see the
patent wars in good vs evil terms, but in strategic terms.  Until
there is World Peace (global patent reform and highly competent
examiners as the norm) it makes little sense for any one power to give
up their nukes, i.e. by not aggressively filing for patents on
plausible inventions. Even if a group of major powers disarmed, the
rogue states and terrorists with missile submarines :-) could still
raise havoc. But remember that there are a lot of forces besides
competing patents keeping Big Companies from nuking the little guys,
including corporate image, antitrust law, the ability of governments
to change all sorts of laws to punish companies that afflict their
constituents, and so on.

Sorry for flogging this nuclear analogy so hard :-)


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