Again, let's not forget patent-litigation defendants...

Again, let's not forget patent-litigation defendants...

Prior art can be extremely useful to defendants in patent litigation. Please keep in mind that the patent-based attackers can (and, from what I understand, often do) take years to carefully build their case. The defendant may only be allowed a month or two in order to build a defense sufficient to convince the judge that a preliminary injunction is inappropriate. If the defendant fails to convince the judge, then the injunction will shut down the defendant, regardless of the merits (or lack thereof) of the attacker's case.

Attackers are aware of this, and thus push hard for settlements. Without easy access to prior art, the defendants who cannot afford a court case (many of them) have little choice but to settle. Such settlements put money in the attackers' pockets -- hundreds of millions of dollars, as we have seen. The attackers do not need strong patents to accomplish their goals -- if anything, they prefer weak patents, since non-novel and obvious patents are more likely to be infringed, thus providing more victims (and more money) for the attacker. Some of the resulting money can -- and will -- be used to resist the patent reform that many of the above comments are (rightly) advocating. Let's face it, a few hundred million dollars can buy an incredible amount of resistance to reform.

So, if you really want patent reform, up to and including abolition of software patents, you need to (1) follow the money and (2) shut down the money flow. If this flow is not greatly reduced, reform attempts, both in the US and elsewhere, will be like pushing a wet rope up a hill. A prior-art database is a good way of accomplishing #2.

What of the danger of stronger patents? Although this danger is real, it is not immediate. It takes years to create patents, years in which reforms might make some headway -- especially if the patent-troll forces have less money with which to resist reform. In addition, as noted above, weak patents are more dangerous than are strong patents, since weak patents can bring in more money to the attackers, money that can be used to resist reform. Furthermore, the harder and more expensive it is to obtain patents, the more likely patent-based attackers are to fish in other waters.

Finally, it is true that OSAPA is not a complete solution. But it is, IMHO, and important piece of a complete solution. If we refuse to work on any given piece because it is not a complete solution, we will end up doing nothing -- which will certainly make the pro-patent forces quite happy.

So please stop attacking your allies! ;-)

Paul E. McKenney (speaking for myself, not necessarily for my employer)