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Very good. But even that will probably take legislation.
Actually, he was offering an alternative ...
Posted Sep 18, 2006 21:31 UTC (Mon) by josh_stern (guest, #4868)
Posted Sep 18, 2006 23:39 UTC (Mon) by drag (subscriber, #31333)
It's a mistake to go through the judical branch of the government ala the EFF or how the this 'Prior Art' thing is going. Sure judicial activism is popular these days and it seems a nice way to enforce your opinion on others when you don't have the democratic backing of your ideas (because either if they are unpopular or most people just don't seem to care or are ignorant), but it's a mistake to go that way when you realy want to solve problems. From the court's point of view everything is 100% legal and constitutional and on the up and up. They simply can not do anything about it.
You may be able to nail a couple cases with prior art, but it's going to be about the equivelent of doing a insanity plea to get out of murder; It's used in less then 1% of murder cases and when it is it's successfull less then 1% of the time. (I beleive thats right)
Of course even if the concept (making software patents invalid via legislation) is relatively simple, doesn't mean its going to be easy...
Posted Sep 18, 2006 23:49 UTC (Mon) by PaulMcKenney (subscriber, #9624)
And if we fail to provide prior art to defendants, the money flowing to patent-based attackers will be used to make it even harder to prevail via legislation. Sad, but true.
Paul E. McKenney (speaking for myself, not necessarily for my employer)
Posted Sep 19, 2006 0:54 UTC (Tue) by drag (subscriber, #31333)
Is there any statistics on how successfull a 'prior art' defense in a lawsuit is?
That is something I am VERY curious about. I've heard that is very difficult and that almost invariably the judge is going to side against you if there is any gray area.
I think that it's to the point were devoting a lot of time and effort to it is pretty much pointless. Energies may be better spent in educating the public and making the case known that software patents are a threat to the growth of small and medium businesses and is to the point were it's stunting technological growth.
Posted Sep 19, 2006 1:45 UTC (Tue) by PaulMcKenney (subscriber, #9624)
Without such an injunction, the defendant is in a much better position -- there is time to try re-examination procedures on the plaintiff's patents, search for more prior art, come up with convincing non-infringement arguments, etc.
And, no, judges do not always favor the patent holder. Though I don't have the statistics handy, I would guess that you can easily get your hands on them.
All that said, I do readily agree that we should also educate the public on the dangers of software patents. Just not to the exclusion of other efforts, including prior art.
Paul E. McKenney (speaking for myself, not for my employer)
Prior art db necessary, as _part_ of our response to SWPats
Posted Sep 19, 2006 20:20 UTC (Tue) by kenm (guest, #40607)
I attended the recent OSDL meeting on this topic, as an interested
bystander. I attended, not because I like software patents, but
because I am Scared To Death of them. Attendance was free, the
subject matter is monumentally important. Why weren't you ALL
I use GPL and other OSS software. A lot. I create software for a
living. No conflict there.
Yet I could not hope to avoid conflict with the current SWPAT system,
because under the current system, things that I consider obvious,
trivial, and essential will be patented.
During the OSDL meeting, I had a chance to discuss this with a patent
attorney. In the current situation, the mere aggregation of two
well-known, non-patentable things, is patentable.
Think about that. The patent office will grant a patent, merely
because no existing patent covers it. Yes, that's crazy, and that's the
real world for you.
So a prior art database is essential; the difference is between A)
documenting prior art, so it can be used to fight "bad" patents, and B)
having no available database of prior art, and being unable to
The prior art database will need to be chock full of the painfully
obvious. It will need to cover things you and I take for granted.
So, if this prior art database backfires, it is only because we
didn't put enough into it.
Yes, we need to "fix" the law, but it won't happen overnight. Given
the capitalist incentive to use patents as a weapon, it may never
I'm glad large companies like IBM are promoting and defending OSS and
the GPL. I'm glad that IBM realizes they have as much to lose as I
And I'm glad that RMS is out there, fighting for my rights.
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