Subject: Re: patent trolls and X-licensors
From: simo <s@ssimo.org>
Date: Wed, 31 May 2006 08:38:33 -0400

On Wed, 2006-05-31 at 20:27 +0900, Stephen J. Turnbull wrote:
> >>>>> "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).

I hope it is not a criminal offense, it is not in Europe (but there are
laws pending that may lead to that). *Criminal* offenses for patents
would be insane.

> 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!")

It is not really a technically solvable problem imho.
When you end up patenting ideas the whole mechanism stop working as
ideas can be reused much more than things, and move from field to field
in ways not necessarily known beforehand. And you can't pretend that
hobbyist (and certainly not even SBEs) can read all the patents ever
made and see if they apply in some subtle way to them.
That's why today, even companies that have the money to search the
patent system and to use it get sued and sometimes loose.

> 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?

You must assume that this become a case. But the law is NOT responding
now that people have already been threatened. In theory the patent
system should not apply for on research, only on product selling, yet
some companies have been successful in shutting down research and
publication of results by patents (sorry I do  not have the references
here but I remember a case in Europe about a German University
researcher that was compelled to retire its software to build a sort of
panoramic image or something like that).

What you don't take into consideration is that a company needs only to
stop you doing what you do, make you retire your software just by
threatening you with a lawsuit, as lawsuit costs so much that no
hobbyist can really even think of going into court (except a few
politically involved one perhaps), even when they are right and the
patent claims are clearly invalid or null by prior art.

> 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.

Why do we need patents in software at all?
All the economist I know convey that the patent system applied to
software and business methods have really only chilling effects (except
for a few monopolists of course).

> 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.

They are already doing that, they are funding initiatives that collect
prior-art or try to shot down clearly invalid patents, but this means
you are in their hands. The day they need a patent they will not help
you.

Simo.