Subject: Re: An idea for opening software patents...
From: Richard Stallman <rms@gnu.org>
Date: Wed, 20 Oct 1999 12:40:16 -0600 (MDT)

    Well, that's one point but the input can be used to file an
    objection to the PTO and try to get the patent invalid.

I discussed this with lawyers years ago, as president of the LPF.  I
was told that often it is a better strategy to save the prior art for
a trial (assuming the patent holder goes so far as to sue).

If the court knows the PTO has seen a certain piece of prior art and
issued the patent anyway, then the court tends to ignore the prior
art, in effect presuming that the PTO's decision was right.
Thus, you are better off not telling the PTO about the prior art.

If you ask the PTO to reexamine the patent and show it the prior art,
the patent holder gets a chance to rewrite the patent to bypass your
prior art while trying to keep it covering most of what people
actually do.  (This is analogous to gerrymandering election
districts.)  If the patent holder succeeds at this, the prior art is
negated.