Subject: Re: patent trolls and X-licensors
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Wed, 31 May 2006 20:27:21 +0900

>>>>> "Ben" == Ben Tilly <btilly@gmail.com> writes:

    Ben> Apparently the law DOES care - and in the eyes of the law
    Ben> you're much better off avoiding finding out about patents you
    Ben> might be violating.

Of course.  If you knowingly violate a patent, that's probably a
criminal offense (knowingly violating a registered copyright is the
analogy I have in mind).

But the only reason you can get away with this is because it's so
difficult to discover what the applicable patents are.  *If* there
were an effective search engine, "I didn't know" would get you about
as far as "but Officer, I'm colorblind and astigmatic, I thought that
stop sign was the Golden Arches."

    Ben> But the point is moot since the search is not of reasonable
    Ben> cost.  And escalating patent volume plus legalese guarantee
    Ben> that it will not be of reasonable cost at any point in the
    Ben> forseeable future.

You're pretty free with guarantees, aren't you?  It's a technical
problem; solving those are what we do best, no?  I suspect that as
ugly as patent legalese is, it's as boilerplate as any other legalese,
and thus susceptible to simulated annealing ("burn, baby, burn!")

Incentive and social possibility?  Although the law is heavily
constrained by precedent, it is by no means static.  If patent
prosecutions of OSS projects start to become commonplace, and heavy
damages awarded against hobbyist hackers, etc, you can bet it will
become an issue.  If a hobbyist can be sued because he was unaware of
information that might be worth a large fraction of his annual salary
to discover---and he can, as you know--- do you really think the law
will not respond to this stupidity if it becomes commonplace?

How about the invasion of privacy necessary to demonstrate such a
violation if unpublished, or published by samizdat?  Or suppose it
gets into Emacs?  (The FSF "blame the contributor" legal papers give
*them* no incentive to do patent searches!)  The contributor will get
screwed, not the FSF, but can you imagine the breastbeating that will
occur in Cambridge?  And the pantswetting that will go on in Redmond
when they realize there's no way to put that genie back in the bottle?

The response will not be to legalize such violations, of course.
Rather, I can see a court order compelling the USPTO to develop and
deploy a reasonable patent search facility, or legislation to the same
effect.  Or I could see court decisions limiting the damages against
hobbyists to a slap on the wrist ... but that would still be a large
threat to patent holders because of the ease of dissemination and the
cost of tracking down copies.  Or court decisions saying that patents
written in obscure, unsearchable legalese are trolls, and can't be
awarded damages.  Not to mention that in court ignorance of the law
may be no excuse, but the propaganda value of such cases would leave
the pro-patent forces in a class with child pornographers.

I'm not advocating that OSS hackers depend on such things (especially
since some of the legal theories I've alluded to are pretty bogus);
I'm just saying I think they're possible.  In order to forstall them,
or simply "at least as plausible as SCO v. IBM" court cases and FUD in
the same vein, I could see "practicing patentholders" like IBM
contributing to development of such a system.


-- 
Graduate School of Systems and Information Engineering   University of Tsukuba
http://turnbull.sk.tsukuba.ac.jp/        Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
        Economics of Information Communication and Computation Systems
          Experimental Economics, Microeconomic Theory, Game Theory