[Discuss] Self-introduction and more on software patent

[hsuanyeh at gmail.com (Hsuan-Yeh Chang)]

On Fri, Sep 30, 2011 at 3:34 PM, Bill Bogstad <bogstad at pobox.com> wrote:

> I look forward to hearing more about how to do this.  In one of your
> previous notes, I believe you mentioned something about filing a
> preliminary application as an inexpensive option to protect oneself.
> I'm not sure if that will be sufficient to deal with RMS' argument
> that any program of consequence might have 100s of patentable ideas,
> but it might be a start.   I also question how much this would help if
> the applications were not written with the (expensive?) help of
> experts in the patent field.   Still I would like to hear more on how
> this could be made to work.
>

(100 patentable ideas) != (100 patent applications).  Often times, one
patent application includes many patentable ideas, some of them are included
in the allowed patent claims, while some of them are disclosed but
unclaimed.  So, a patent application serves two functions: 1. describe the
invention; 2. tell the public the metes and bounds of the patent right
sought.  Anything described in a published patent application (19 months
after filing and before grant) will become prior art against later filed
patent applications.  So, if one describes his/her inventive concept in
detail in a patent application, that description will be time stamped by the
patent office and stands for prior art.  As long as you don't care about the
scope of your patented rights (as you are not really seeking patent
protection anyway), I see no reason why you cannot write up a patent
application yourself (by borrowing a copy of Patent-it-yourself) and get it
on file with minimum costs.  Ultimately, with a few hundred dollars of
official fee, you can do a "patent application" including hundreds of pages
(thus including hundreds of patentable ideas) and get it on file and later
published by the patent office.  This will make patent examiners very happy,
because patent publication database is normally the first place they search
and find prior art to reject a patent claim.


> Actually I did know this.   The single line in question from the US
> Constitution:
>
> "To promote the Progress of Science and useful Arts, by securing for
> limited Times to Authors and Inventors the exclusive Right to their
> respective Writings and Discoveries;"
>
> mentions neither patents nor copyrights by name.   Nor does it require
> the federal government to create such laws unless they deem them
> useful.  That's not to say that I think these laws are going away, but
> I think you overstate your case by suggesting patents and copyrights
> are in the same category as other rights to liberty and property as
> guaranteed in the US Constitution and it's amendments.   I see no bar
> in the Constitution for Congress to up and decide it's all worthless
> and eliminate them entirely.   I have read some things that imply that
> ratified treaties are considered to be somewhere between legislation
> and the Constitution as far as US law is concerned.  If true, current
> treaties could be an issue for any attempt to eliminate patents.   If
> you could clarify/correct me on that, it would be appreciated.
>
>
I probably shouldn't compare the importance of liberty and property
interests with patents and copyrights.  My point is, something is written in
the constitution for more than 200 years, and it would take an
overwhelmingly prevailing argument to get it changed.  So far, I don't see
the open source community has made a case on why Congress should change this
part of the constitution.

International treatise is another factor.  But don't forget who is the
biggest player behind those treatise?  It's the United States.  Over the
years, the US government has constantly challenging China and many other
countries for "stealing" intellectual property from the US.  If the US
abolishes patent law before anyone else, how would the administration
challenge other countries for not protecting intellectual property?  I don't
believe the US government would slap on its own face...

HYC