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Actually, he was offering an alternative ...Actually, he was offering an alternative ...Posted Sep 19, 2006 0:54 UTC (Tue) by drag (subscriber, #31333)In reply to: Actually, he was offering an alternative ... by PaulMcKenney Parent article: Prior art won't solve the software patent problem (NewsForge)
My point is that prior art simply isn't going to be effective. That's all.
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.
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Actually, he was offering an alternative ... Posted Sep 19, 2006 1:45 UTC (Tue) by PaulMcKenney (subscriber, #9624) [Link] In my own experience, if you can quickly put together a solid case, you can often convince the attacker to back off entirely. After all, they want easy money, not a hard-fought court battle. Even if they have already filed suit, the presence of solid prior art can help convince the judge to refuse to grant a preliminary injunction, which, if granted, would shut the defendant down completely. Such an injunction puts the defendant at a serious disadvantage in settlement negotiations, and can in fact force the defendant to quickly settle.
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)
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