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   Re: [xml-dev] Another Microsoft XML patent

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Robin Cover wrote:

> I didn't used to believe this, but now I'm persuaded,
> since the most influential proposals for "patent reform"
> supported by Microsoft [1] and other pro-SW-patent groups,
> as incorporated into the draft Patent Act of 2005 [2],
> call for abandoning the "first to invent" model and
> adopting a "first to file" rule.  It's being done
> in the name of "international patent harmonization"
> (read: allowing large patent-holding companies to win
> with uniform ease in any jurisdiction).

I will not attempt to defend the Powers That Be's views on IP because
I'm personally uncomfortable with them.  I would, however,  ask that
they be accurately portrayed and fairly analyzed.  It might be
instructive to  Google for "microsoft patent proposal" and compare
this take with whatever comes up with as the highest ranked

You come up with "Microsoft Advocates for Patent Reform"
http://www.microsoft-watch.com/article2/0,1995,1775136,00.asp  as the
top hit.

That lists the proposals as:

#  Halt the diversion of fees earmarked for the U.S. Patent and
Trademark Office (PTO) to other government uses.

# Allow third parties to submit "prior art" information to patent
examiners during the patent process itself, rather than only after a
patent has been issued.

# Allow third parties to challenges patents "administratively," rather
than just through litigation in order to help weed out questionable
patents, as currently is permitted in Europe.

# Create a special court that would consolidate and hear all patent
cases at the federal district level in order to improve consistency
and predictability of patent litigation.

# Reform the standard used to measure "willful infringement," via
which claimants are currently allowed to collect treble damages.

# Increase "harmonization" and collaboration across international boundaries.

# Move to a "first-to-file" system, rather a "first-to-invent one,"
thus following the patent procedures to which most other countries

The first few seem quite consistent with the suggestions by several
people here here to make the USPTO more competent and make  it harder
to get bogus patents on obvious, non-novel techniques.  The last
couple that get Robin's scorn are at least open to alternative
interpretation; the article suggests that the harmonization proposals
are a well-known suggestion from the legal community rather than a way
to stack the deck in favor of one side.

Also,  while reading the Gary Reback piece that Robin quotes from,  I
couldn't help thinking  that had Sun been somewhat more aggressive on
the patent front, they would have been able to stand up for their
rights much better:  "We have [some large number of ] U.S. patents. Do
you really want us to go back to Mountain View and find seven patents
*you* infringe? Or do you want to make this easy and just shut up and
go away?"


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