Actually, he was offering an alternative ...

Posted Sep 18, 2006 23:49 UTC (Mon) by PaulMcKenney (✭ supporter ✭, #9624)
In reply to: Actually, he was offering an alternative ... by drag
Parent article: Prior art won't solve the software patent problem (NewsForge)

> Of course even if the concept (making software patents
> invalid via legislation) is relatively simple, doesn't
> mean its going to be easy...

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)

Actually, he was offering an alternative ...

Posted Sep 19, 2006 0:54 UTC (Tue) by drag (guest, #31333) [Link] (1 responses)

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.

Actually, he was offering an alternative ...

Posted Sep 19, 2006 1:45 UTC (Tue) by PaulMcKenney (✭ supporter ✭, #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)

Prior art db necessary, as _part_ of our response to SWPats

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.