RE: [xml-dev] XML-DEV list - prior art

[sterling <sstouden@thelinks.com>]

Scientist append to and footnote to every appendage to all portions of 
their newly published content so that all prior (or at least the leading 
reference to the prior art relating to every point claimed in the paper or 
used to developed the current product has a easily findable reference  
(ancient for link) to the prior art.  Part art is part of the product.

All subsequent researchers on the subject need look to the few most 
current papers on the topic to discover all known prior art and to have 
the reference to include for his or her own software. 

What would solve this 'discovery of prior art" problem with definite 
objectivity would be to get all publishers of software to adopt the  
policy of referencing (making clear developer conclusions that the cited 
reference fails to exactly cover the claims of the current [software] 
work, if any, or the developer would by his inclusion of the reference 
without comment, admit that he or she is using the prior art disclosed in 
the linked, footnooted and appended references.

If the law could be changed, so that the first to publish had the claim, 
there would be little doubt as to who had the ownership in the claim. 

In short every software project would carry a cumulative history of known 
prior art.  Each failure to include and explain a reference would, I am 
sure find, a critic who would point out the failure so that the next  
published projects would update to include the missing reference.  In this
way, within a short period the entire software industry would have a 
moving cummulative reference of all prior claims attached to the topics
that were included in a current work. 

Such a system would make it easier to explain the novelity in current 
works and might even reduce the frequency of patent lawsuits.  The 
community of developers would need to impose this reference to prior art 
on themselves at least until it could be made a law.  

More important would be to develop a non legal prior art server to  
do little more than list topics with references to prior art and 
patented owners of the prior arts so that developers could append to 
their works the topic listed on the server. 

Further all persons with claims of encroachment could notify publishers of 
pior works and remind them them of the claim and the missing reference.  

This would bring the art of law to the realm of the scientists and 
software developers who actually do the work and it would prevent the 
owner of the patent from claiming the innovative genius that the developer 
contributed in generating the patent.  ( Recall that under many work for 
hire agreements, the developer does not own the patent or copyright rights 
to his or her or works). 

The reason this has not been done in the software industry is that the 
software code is not always made public [open source], so the genius of 
the developer encoded into each line of code cannot be indexed for the benefit 
of the next developer.   Current Uncertainity demands a better system than 
now exits and to improve the system the developers not the lawyers will 
have to speak.

sterling