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[Discuss] more on software patent



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/
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>



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