| |||||||||||
Again, let's not forget patent-litigation defendants...Again, let's not forget patent-litigation defendants...Posted Sep 18, 2006 17:05 UTC (Mon) by PaulMcKenney (subscriber, #9624)Parent article: Prior art won't solve the software patent problem (NewsForge)
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)
(Log in to post comments)
Again, let's not forget patent-litigation defendants... Posted Sep 18, 2006 17:19 UTC (Mon) by JoeBuck (subscriber, #2330) [Link] I'm all for finding prior art the purpose of helping patent-litigation defendants. But the way ODSL is structuring this thing, the prior art might just help people seeking software patents to write stronger patents. Now if the ODSL just wants to collect prior art that will serve to undermine existing software patents, that could be a good thing.
Again, let's not forget patent-litigation defendants... Posted Sep 18, 2006 17:34 UTC (Mon) by PaulMcKenney (subscriber, #9624) [Link] Since we cannot predict who the defendants will be, the only way to get the prior art to them is to make it public. Since it must be public, then, yes, it might well be used for nefarious purposes. But the possibility of nefarious use is outweighed by the needs of the defendants.
In addition, denying the information to the defendants allows the attackers to collect more money from litigation or (more likely) settlements. Therefore, failing to publicize prior art provides more money to the attackers, money that will be used to (1) resist reform and (2) create/purchase even more patents. This is already happening. In contrast, the danger that prior art will be used to create stronger patents is a longer term issue, since it takes years to create a patent -- and if we stop giving easy money to the attackers, substantial patent reform might be possible during those years.
We must carefully weigh all of the dangers, as well as their corresponding timeframes. Fixating on some of the dangers and ignoring others will play into the hands of the patent attackers, as will failing to understand the corresponding timeframes.
Paul E. McKenney (my personal opinions, not necessarily those of my employer)
Again, let's not forget patent-litigation defendants... Posted Sep 18, 2006 19:38 UTC (Mon) by sepreece (subscriber, #19270) [Link] Unless I'm missing something (certainly possible), while a prior art database might help applicants write stronger patents, that would be largely because they would also be narrower patents, since the authors would have to claim around the prior art.
That is, when such a patent is infringed, the infringement is clearer and harder to defend, but there are fewer situations that would infringe.
In the most egregious cases, the prior art isn't particularly hidden or obscure, the authors just make their claims regardless. [Perhaps, like wanton infringement, there should be penalties for wanton disregard of obvious prior art]. So, I doubt a prior art database would really lead to a worse situation than we have today.
Again, let's not forget patent-litigation defendants... Posted Sep 18, 2006 18:08 UTC (Mon) by oak (subscriber, #2786) [Link] > 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. The current patents aren't necessarily such a problem (they expire), but the ever expanding number of them is. The money flow is from the companies filing for patents to the patent office. If this were stopped or even better, reversed, the current patent debacle should get a quick stop. One way to get this money flow reversed would be for patent office to be held responsible for the patents (government granted monopoly rights) companies buy from it. If a patent it has granted gets overturned in court, the patent office should in my opinion return the money received from the patent application AND it should also pay the litigation costs at *both* sides. The losing side pays only the damages/royalties. The litigation costs are so expensive that patent office should soon see the "wisdom" of granting frivolous patents...
Again, let's not forget patent-litigation defendants... Posted Sep 18, 2006 18:56 UTC (Mon) by PaulMcKenney (subscriber, #9624) [Link] I disagree -- current patents are a problem. They cause huge amounts of money to flow to patent attackers, who can use some of that money to resist reforms -- including reforms like your USPTO-pays proposal. (I am not coming out for or against your suggested reform, as I have not had much time to examine it for possible abuse or other unintended consequences.)
Paul E. McKenney (my opinions, not necessarily those of my employer)
|
|||||||||||