[Patents] patent pools enforcing per-copy-licensing mode of software development

[PILCH Hartmut phm@a2e.de]

On Mon, 1 Jan 2001, Gregory Aharonian wrote:
> Ramon writes:
> >Patent fees are so expensive that no independent programmer can afford
> >filing patents.  Open source is no exception.
> 
> Another false statement of patent application strategy.  In the US,
> an independent programmer can file a provisional patent application
> for $75.  He or she then has one year to file a formal patent
> application (with the much higher fees that everyone dreads).
> However, in that one year, this person is able to discuss his ideas
> with potential investors or partnets, without any loss of patent
> rights.

The problem isn't even so much with the patent fees but rather with the
cost of drawing up a good patent description, searching prior art, and,
most important, defending the patent in court.  The latter item may add an
average cost of near 100,000 USD to every patent you file.  If you don't
have the intention to defend the patent in court, then it is a big waste.
 
> Thus a quite reasonable strategy, and one that I encourage, is for
> independent programmers (including the open sourcers), if they have
> something valuable enough, to file the provisional application, and
> then test the waters to see if they can raise monies for its further
> development and marketing.  If they can, then they can usually afford
> the higher patenting fees.  If the can't raise the money, then can
> also dedicate their new ideas to the public.

There is no way to use a patent in free software and at the same time
raise money with it.  Thus "opensourcers" will always have to give up
their patents and "dedicate their new ideas to the public".  Thus being
burdened with extra fees, costs and restrictions in return for nothing.
 
> So Ramon's blanket dismissal of the entire patenting process is very
> bad advice, especially for independent open sourcers.

You as a patent professional should know better.  But like most
professionals, when the self-justifying ideology of your profession is at
stake, even the service ethics of giving good advice no longer counts.

Again I recommend the consistent position of Prof Endres.  Another such
position was published a few days ago by the German patent lawyer
association (patentanwalt.de).  They state that free/opensource software
is unimportant and uninnovative.  To support this assertion, they quote
Linus Torvalds, who said that "we do nothing new but everything better."

Moreover they claim, like Greg and Robert Hart, that swpat are compatible
with free/opensource software.  Moreover they want software patents "for
the benefit of small and medium enterprises".  The author is Mr. Hoessle,
a patent lawyer who chaired the panel in the discussions with
representatives from various companies at the Berlin consultation meeting

        http://swpat.ffii.org/penmi/bmwi-20000518/

and thus clearly knows better.  In November he even managed to get a swpat
propaganda article of similar content and style into linuxenterprise.de, a
magazine targeting opensource related companies.  That magazine presented
the article as a contribution of their editorial staff.  Which shows that
obstinate lying can pay off, since there are many clueless people in the
world.

-phm