Actually, he was offering an alternative ...
Actually, he was offering an alternative ...
Posted Sep 18, 2006 17:51 UTC (Mon) by josh_stern (guest, #4868)In reply to: Actually, he was offering an alternative ... by JoeBuck
Parent article: Prior art won't solve the software patent problem (NewsForge)
This comment seems correct to me, but more of a case would need to be made to convince me that RMS's strategy is correct here.
Five implicit premises are on or near the table:
1. that the U.S. patent office will in the future always be on the side of those trying to get new patents;
2. that the existence of things like OSDL database will help persuade European Union legislators to favor patents there; and
3. that people putting energy into things like the OSDL database might otherwise devote their energy to anti-patent lobbying.
4. that the existence of such a database as a resource will help to make the same patents that would otherwise be granted stronger, rather than saving everyone a bunch of bother and nonsense by leaving them overly broad (and granted).
5. that no free software will get written, which otherwise would not have, because the authors or their employers are more comfortable with the relevant patent situation.
While "1" is true, the fewer bad patents granted, the better. If "1" were no longer true, then much of the backfire argument goes away as well. Making "1" no longer true by lobbying for change in the incentive structure of the patent office might be a more approachable goal than getting rid of software patents all together. I've got no opinion about the truth of "2" but it seems like something that needs more argument; it's not obviously true. The truth of "3" and "4" seems pretty questionable, and a little imagination should allow one to see that "5" is false.
In summary, it seems to me that the OSDL database could obviously do some overall good except if we believe the "backfire" argument. But the backfire argument rests on questionable supporting premises that RMS does not bother to defend in the linked editorial.
Posted Sep 18, 2006 19:42 UTC (Mon)
by BrucePerens (guest, #2510)
[Link] (8 responses)
Having been told what to do by the judicial branch, the patent office does not have much choice. Some of the officers there, however, have told me they'd rather things were different.
I can't see a way to fix this except with legislation. Europe is where the battle is currently being fought. It can be fought in the U.S., but a key part of that fight will be decoupling of software from other sorts of patents like pharmeceuticals. The drug companies want their patents bad enough to spend billions on the issue, and getting them out of the battle is our best strategy. Bruce
Posted Sep 18, 2006 20:29 UTC (Mon)
by josh_stern (guest, #4868)
[Link] (7 responses)
When I wrote "Making "1" no longer true by lobbying for change in the incentive structure of the patent office might be a more approachable goal than getting rid of software patents all together", what I had in mind was less than getting rid of software patents - more like making it so that the patent office performance was evaluated at least equally if they turn down a patent as grant it and that they go about their business in like conservative doctors with the motto "first do no harm".
Posted Sep 18, 2006 21:21 UTC (Mon)
by BrucePerens (guest, #2510)
[Link] (6 responses)
Bruce
Posted Sep 18, 2006 21:31 UTC (Mon)
by josh_stern (guest, #4868)
[Link] (5 responses)
Posted Sep 18, 2006 23:39 UTC (Mon)
by drag (guest, #31333)
[Link] (4 responses)
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 (✭ supporter ✭, #9624)
[Link] (3 responses)
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 (guest, #31333)
[Link] (1 responses)
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 (✭ supporter ✭, #9624)
[Link]
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)
Posted Sep 19, 2006 20:20 UTC (Tue)
by kenm (guest, #40607)
[Link]
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
there? 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
fight. 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
happen. 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
do. And I'm glad that RMS is out there, fighting for my rights.
I don't think #1 is valid. The U.S. patent office might be an enthusiastic implementor of software patenting these days, but for many years refused to grant them. That refusal was reversed by the supreme court in response to a case brought by IBM. Our big friend, IBM, right? Well, IBM created this problem for us.Actually, he was offering an alternative ...
Actually, he was offering an alternative ...
Very good. But even that will probably take legislation.Actually, he was offering an alternative ...
Legislation - one possible outcome of lobbying - should be understood as a surer solution than an executive branch order, though the chief executive doesn't seem to agree. :(
Actually, he was offering an alternative ...
Contact your faithfull public servent from the 'House of Representatives' is the solution for us. That's specificly what these guys are for. Their purpose in life is to take up causes like this if there is enough of a grassroots movement for them.Actually, he was offering an alternative ...
> Of course even if the concept (making software patentsActually, he was offering an alternative ...
> invalid via legislation) is relatively simple, doesn't
> mean its going to be easy...
My point is that prior art simply isn't going to be effective. That's all.Actually, he was offering an alternative ...
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.Actually, he was offering an alternative ...
Prior art db necessary, as _part_ of our response to SWPats