Subject: Re: Why software patents are bad
From: "Karsten M. Self" <>
Date: Wed, 22 Sep 1999 12:15:28 -0700

Bernard Lang wrote:
> > > I have been talking to an IP lawyer who told me that for patenting, what
> > > you accomplish is what matters more than how you do it. The example he
> > > gave me is that if your system filters e-mail for some purpose, the
> > > patent will cover the idea of mail-filtering regardless of how it is
> > > achieved. In other words, if I understand him correctly ... which I
> > > hope) it kills any incentive to develop a good mail filtering
> > > technique since
> > >   - if you intend it for the same application, you will be blocked by
> > >     the existing wide patent
> >
> > Possibly.  But you may also be in a position to block the earlier work,
> > or control the growth path of application development.  Often the most

< * snip * >

> knowing there are usually many way to do things, so that blocking is
> unlikely, research is effectively discouraged. But the real point is
> that the patent is non inventive.
> and back to another point... open source does not provide fees
> necessary for patents applications... 

This is equivalent to saying that open source | free software isn't a
viable business model.  Do you really mean this?  We differ on
conclusion and implied premise.

> at best we should publish all
> ideas that come to mind, and publish in public places that patent
> offices do not reach easily so as to raise the cost of patenting
> because of the risk of undiscovered prior art. If it gets risky
> enough.. maybe they'll relent (fat chance).

I addressed this in my response to a recently posted "should I patent
this" questionnaire.  Publication of art may serve to record it, but if
you believe the research of Greg Aharonian, there's little to no
reference to non-patent prior art in most patent applications, so you're
not likely to prevent issue of new patents on the same art.  At best
you've got a databank to refer to in trying to invalidate patents
(cost:  US$100k pretrial, US$1m trial).  It's like stocking up on
plastic spoons to bail yourself out in a flood:  cheap alternative,
little protection.

The USPTO has some form of registration proceedure which allows art to
be reported to the USPTO but not patented.  See above.  There is a
possibility such art is more likely to be reported in a prior art search
and investigation of a patent, and some near-duplicate patents might not
be filed.  But you're still left with a situation in which you've little
legal leverage to move against someone who's got a blocking patent.

The only realistic alternatives I see available to the free software is
to either create a patent-based defense, or to find an alternative
defense, either of which has to make a patent challenge against open
source generally too expensive to contemplate.  Patent pools are one
method, they require free software-friendly patents.  A
copyright|license based poison-pill defense is another, it strikes me as
much more usable and amenable to the situation of the free software
community.  Using both methods is certainly possible.

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

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