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

["Nathan Young -X \(natyoung - Artizen at Cisco\)" <natyoung@cisco.com>]

Hi.

The scientific community attempts to accurately attribute discoveries to
the people who make them.  This can be extremely tricky to do, and the
structures you describe have been set up so that people who follow them
have an increased likelihood of getting credit for their contributions.

The patent system may play a similar role in the world of commerce.  It
should enhance the ability of people or organizations who follow the
forms to profit from their discoveries.

I think I hear you advocating for the partial replacement or
supplementation of the patent system with the academic system for
attribution, at least with respect to the world of commercial software.

Am I missing your point?  I'm not sure how literally to take you when
you say things like:

> 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. 


------------>Nathan



> 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
> 
> 
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