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I call BS on the whole idea of prior art. It's everywhere and patents are issued that defy the rules. There is no art in the system. Ask a real patent attorney what he thinks. See the poster child http://www.1201tuesday.com/1201_tuesday/2010/10/poster-child.html If this is a valid patent; already in; how do you accommodate that? Greg Rundlett my public PGP key<http://pgp.mit.edu:11371/pks/lookup?op=get&search=0x5E07A26B877CEBF6> On Sun, Oct 2, 2011 at 9:10 PM, Tom Metro <tmetro-blu at vl.com> wrote: > Glad to see the spirited discussion on software patents. > > If you want to listen to a decent investigative report on how the patent > system in general (not specific to software patents) is broken, and > learn more about how troll companies operate, check out: > > "When Patents Attack!" > > http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack > > Also: > > "The Very Basis Of Our Patent System... Is A Myth" > > http://www.techdirt.com/articles/20110725/03174515229/very-basis-our-patent-system-is-myth.shtml > > The above article comments on this paper: > http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856610 > > and pulls this key quote from it: > > The theory of patent law is based on the idea that a lone genius can > solve problems that stump the experts, and that the lone genius will > do so only if properly incented. But the canonical story of the lone > genius inventor is largely a myth. Surveys of hundreds of significant > new technologies show that almost all of them are invented > simultaneously or nearly simultaneously by two or more teams working > independently of each other. Invention appears in significant part to > be a social, not an individual, phenomenon. The result is a real > problem for classic theories of patent law. Our dominant theory of > patent law doesn't seem to explain the way we actually implement that > law. > > > In regards to the RMS talk, even if you don't buy his case for the > abolition of software patents, most of his reasoning applies equally > well to making a case that any purely software invention should be > granted a substantially shorter protection period, simply because > software invention is comparatively easier. (One could pretty easily > expand on that line of thinking. For example, no need to make massive > capital investments in factories, etc. to produce a software product.) > 17 to 20 years of protection is laughable. 3 years would be more like > it, though if that's from time-of-filing, and our approval process > doesn't get streamlined, it would need to be more like 5 years. > > > The current patent system has a measurable negative impact on my > business as a contract developer of software solutions. More often I'm > seeing clients seeking to put patent indemnification clauses into their > contracts. If such a clause is present, there is no action my business > can take to avoid liability. With a copyright violation, you are fully > aware that you are copying someone else's work, and this can be easily > avoided (and management can use tools to insure employees aren't > infringing). But with patents it is an impossible task. Even if you took > the impractical step of performing patent research on every line of code > you produce, that code is generally kept proprietary, and not patented, > and thus could be in violation of a patent published in the future, and > you'd have no prior art as defense. > > The only recourse is to modify the contract, when possible, to make > liability conditional on *knowingly* violating a third party's IP, or > buying insurance. > > > Hsuan-Yeh Chang wrote: > > By filing a patent application and getting it published, your > > Examiner friend would have citations to reject late comer's claims. > > As others have pointed out, prior art can come from just about anywhere, > and doesn't need to be another patent. > > > > Should the open source community started to file patent applications > > in the few decades, there would have sufficient number of references > > to knock out those what you called "obvious" patents. > > Your premise seems to imply that merely having a concept contained > within a patent application will make it easy to find by the examiners. > While having the information in the PTO's database should help, it > should be obvious to anyone who has done patent research that it can > still be very challenging to find prior art. Patents are classified into > broad categories, and with software being abstract concepts, what > categories are used and how a concept is described could vary tremendously. > > > > Examiner's would not even bother looking at your applications, if you > > expressly abandon them AFTER publication at the 18th month. > > Wile apparently typical that they don't make their decision sooner than > 18 months, in theory aren't they supposed to start looking at them > before then? > > > > The patent office has already received tens of thousands patent > > applications for ridiculous inventions. I believe that they wouldn't > > mind to take hundreds or thousands more from the open source > > community. > > Flooding the PTO with applications that are never intended to be pursued > seems like a poor solution. > > As was mentioned earlier in the thread, the open source community could > set up their own database. Even if this couldn't be funded by some large > sponsor (like IBM, for example), the "filing" fee would likely be less. > And the application could be designed better for electronic > cross-referencing of concepts, with the ability to let others tag and > link related art, and comment on the originality. > > Eventually you could provide an API and have tools that semi-automate > the process of breaking down source files into "patentable" chunks, > prompting the author to fill in an abstract describing what each chunk > does. > > There are already several companies that build databases of open source > code to address copyright violations (for example, Black Duck Software, > who makes their database available via koders.com). A variation for > patents - though far more complicated - could be layered on top. > > > A better solution to the "obviousness" problem is peer review. You want > industry professionals reviewing patents from their industry, as they > will already be well familiar with the prior art and will know what > should be considered obvious. Large businesses will also find it is in > their best interest to pay employees with expertise to review patents, > as it would be far cheaper to knock out a competitor's patent at this > stage. > > The PTO has made it known that they'd welcome this, and I think I've > read a few times about proposals to formally adopt such a system. To do > it right, you need early public disclosure of the application. I've been > wondering if the AIA incorporates this. > > Until formally adopted, anyone can volunteer to review applications > using monitoring sites like http://www.freshpatents.com/ . > > > > Accordingly, "patent" means "disclosure" and not > > monopoly by itself. So, what the patent system does is that the > government > > solicit disclosure of ideas from smart inventors, and award them with > some > > "exclusive rights" with certain "limited time" if these smart people > would > > tell the public in detail what the invention is... > > > > To take away patent protections from all subject matter, inventors would > be > > less inclined to disclose their invention. Take blue LED for example, it > > took Nakamura 20 years of lab life to find his formula. If Nakamura > keeps > > his technology secret, I can't predict how long it would take for another > > person to develop the same thing. > > The NPR piece cited above makes the point that current patents fail at > the objective of disclosure because they are intentionally worded to > obscure the invention as much as possible while also being as broad as > possible. (This is the difference between a "professionally" written > patent and an inventor's self-written patent.) > > Anyone here tried building or coding something based on the description > in a patent? > > Occasionally you'll see one that is straight forward, but clearly if the > objective was disclosure, the norms for patent language wouldn't be what > they are. > > -Tom > > -- > Tom Metro > Venture Logic, Newton, MA, USA > "Enterprise solutions through open source." > Professional Profile: http://tmetro.venturelogic.com/ > _______________________________________________ > Discuss mailing list > Discuss at blu.org > http://lists.blu.org/mailman/listinfo/discuss >
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