Subject: Re: Patents (was Re: DiBona, Allman, Tiemann, O'Reilly, Perens interview)
From: <>
Date: Mon, 31 Jan 2000 00:56:39 -0800
Mon, 31 Jan 2000 00:56:39 -0800
On Mon, Jan 31, 2000 at 01:54:55PM +0900, Stephen J. Turnbull wrote:
> >>>>> "kms" == Karsten M Self <> writes:
>     kms> Greg Aharonian can probably dig up the juicy quotes.
> OK, I agree with your point about commissioners and examiners.  I
> still think it would be worth trying to get the examiners the
> resources needed to search for prior art in the textbooks where it
> exists rather than in patent databases where it doesn't.  Eg, a
> fair-use exemption for the PTO so they can scan all the professional
> texts and journals into their prior-art database.

There's still the problem of providing an incentive for a stricter
rating of patent applications.  I don't see this happening, whether the
resources for doing it are available or not.

> Also pushing for a much extended public review period.  Raising the
> bar may not be optimal from our point of view, but it's more plausible
> than abolition from the legislative standpoint since it's already been
> tried.

Yes.  Incremental, rather than revolutionary, reform is most likely, and
probably the better way to fly.

> As for Greg, I'd rather  he  spent his time getting Patent-Busters,
> Inc, rolling.  This would both have direct ameliorative effects, and
> serve to point up current absurdities in a way that might result in
> useful reform.

This is his bread and butter business -- PATNEWS is a sidelight.  But I
guess there's only so much one man can do.  Greg is also pretty much an
institution unto himself.

>     >> Wishful thinking, IMO.  Patenting business methods probably
>     >> works in favor of the Fortune 500; they can afford to pay the
>     >> license fee if reasonable or break the patent if that's cheaper
>     >> (and most of them are breakable).
>     kms> Fair enough.  I hadn't considered that, but it's probably
>     kms> true.  Though even a short-term disruption of business would
>     kms> be extremely costly to any of these firms.
> It's unlikely that business would be disrupted, though; the
> patent-holder has to prove their point to some degree first, don't
> they?  For internal operations this would involve discovery, etc, etc,
> all of which could be delayed, while at the same time the defendant is
> coming up with plausible prior art (which we all believe would be the
> case).   The plaintiff would probably prefer to back off and either
> settle for a reasonable fee or attack somebody else.

I'm not sure what the specifics of law are WRT to patents.  However, to
go into speculative mode, looking at the current state of copyright
provisions, with DMCA it's possible to make a common carrier pull
content on *assertion* of infringement, not proof.  I'm not sure if this
requires and injunction or not, my reading of the applicable law is not.

The tendency in IP law over the past decade has been to radically
increase the protections offered IP rights holders, to the detriment of
the general public.  If this trend continues, and includes patents, then
I'd say you could see business interruptions.

> And remember, even this scenario would probably only apply to patents
> held by professional patent extortionists.  Companies like IBM would
> probably prefer cross-licensing, pools, or reasonable fees.

How about, say, and E-brokerage house defending its market turf against
other comers.  Leaving IBM alone, but picking on smaller targets.

> So I suspect that even when some F500 firm takes a hit, in many cases
> the outcome would be proposals for reform of a type that would be
> particularly ugly for OSS, tending to support the IP of well-
> entrenched companies with large portfolios who are well-behaved
> leeches, but make life difficult for people who hold one or a few
> patents.

Thanks for making my day, Steve.

Karsten M. Self (
    What part of "Gestalt" don't you understand?

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