From mark@primefactor.com Thu, 27 Jan 2000 01:29:49 -0500
Date: Thu, 27 Jan 2000 01:29:49 -0500
From: Mark Shewmaker mark@primefactor.com
Subject: [Patents] Re: [Patents] Re: basic problem

(Added in an attribution.)

On Wed, Jan 26, 2000 at 06:04:40PM +0100, PILCH Hartmut wrote:
> On Tue, 25 Jan 2000 16:14:39 +0100, Krzysztof Sobolewski wrote:
> > So, it's better no tempt "evil forces", I think; acting for honest
> > aim, we must be honest ourselves.
> 
> The game that Greg plans to play is legitimate, but it doesn't go to the
> basic problem.  If it is successful, it will just eliminitate some very
> stupid patents and therebey strengthen those patents, that are juridically
> sound but perhaps even more harmful.

(Possible straw man argument follows.)

Even that problem may be politically useful.  One argument I've heard
for the software-patents-really-aren't-all-so-bad point of view says
that usually either most of the software patents are really very limited
when you read the actual claims, or that they could be limited or
overturned by anyone willing to go to court with strong prior art
claims, meaning these patents don't present a "real" problem.  The
argument continues by saying that after removing those patents from
consideration that there are very few patents left that are actually
widely harmful but legally sound.

Well, Greg's plan provides for a method of overturning unsound patents
in a way that can be both stable and profitable over the long term.
(And improvements in the process to make it more efficient simply
results in more bad patents being overturned and more money going to the
bustpatents participants.)

If this were wildly successful, such that patent-busting prior art could
easily be found and documented for existing unsound patents, then
perhaps it could noticeably lower the percentage of enforced software
patents that could be considered bad for legal soundness reasons.

That leaves the harmful-but-sound patents.  I don't see a way in general
in which the bustpatents plan could overturn a patent that is seriously
damaging the industry if it's otherwise legally fine.

However, by that point it will be much easier to point out how the
patent system is so destructive to progress.  The problem about
(software) patents (IMHO) isn't so much that there are procedural
problems in the different PTO's, which there are, or that applicants
aren't doing proper searches, which they aren't, but that the patents
are fundamentally at odds with the notions of basic intellectual
freedoms as well as being at odds with human nature and the nature of
thought.

That could probably be expressed better, but the long-term political
advantage I see in Greg's plan is that it can help reveal the problem
inherent in software patents to more people.  It can help show that they
lead to a situation which stifles progress and encourages monopolistic
behavior when it does work as planned (few procedural errors, etc.,) by
pointing out harmful software patents that Greg's plan can't address.
It can of course show that bad software patents can falsely inflate
stock prices, giving an idea of some of the problems that show up when
the system's procedural flaws must be endured.  Add that to any
documentation or reliable estimates of the money spent by companies who
would rather avoid the issues altogether but need to acquire a defensive
patent portfolio to protect themselves against possible infringement
lawsuits, and it will become easier to convince people that at the most
fundamental level that software patents simply aren't a good idea.

(Granted, there is a danger of the plan strengthening harmful patents as
opposed to simply illuminating them.  I'm guessing there are enough
overturn-able patents to keep everyone busy for a long while.  I wonder
how much of a problem this strengthen-harmful-patents possibility will
really turn out to be.)

> >   I've another proposal - if we can't "unpatent" all software
> > immediately, and/or abolish patent system at all, why not try to:
> >     PATENT "ANYTHING_THAT_IS_MOVING" IN THE SOFTWARE FOR FREE USE
> > (SIMILIAR TO GPL) ONLY ?
> 
> Similar proposals have been elaborated before, see www.openpatents.org and
> the Lpf article on mutual defense.

I'd welcome discussion on the openpatents topic:  As documented on the
site, there's an opl-discuss mailing list that you can subscribe to if
you're interested in discussing and helping to improve the Open Patent
License.

(Okay, there are only a couple posts so far, but it would make sense to
talk about things specific to the OPL there instead of here.  I
especially don't think the this list would want to see conversations of
the you-forgot-an-adverb-here type, but I don't want to be
counterproductive by drawing general conversation on patent issues away
from this and other similar mailing lists.)

 -Mark Shewmaker
  mark@primefactor.com




