Subject: Re: termless copyright and patents
From: "Ben Tilly" <btilly@gmail.com>
Date: Thu, 21 Sep 2006 18:13:29 -0700

On 9/21/06, Thomas Lord <lord@emf.net> wrote:
> So, just to cut to the chase,
[...]
> So, Joe Hacker invents a new kind of UI widget and, for $75, files
> a patent.   He worked in his parents basement for 6 months on that
> (and it is the fruit of several years of idle contemplation).   It
> really, really belongs in every web browser out there and, if Joe didn't
> file but simply posted it on source-forge and made even a moderate
> amount to publicize, it would probably show up in web browsers within
> 3 years.

$75 doesn't cover the cost of a patent search.  Patents cost more than
$75 to file for very good reason.  Theoretically you can file a very
simple and minimal patent for $400 or so.  (That would be filing it
yourself, and it has very few claims.)  Realistically you are looking
at several thousand dollars.

This is not very steep for a business.  It is steep enough that
someone who is doing this as a hobby simply isn't going to bother
filing a patent.

> Instead, Joe takes out a 5 year patent, public license at $150,000, opting
> for arbitration.   He caps infringement damages at $300,000.   He
> reduces to practice as a proprietary Python/Tk library and as an ActiveX
> library.
>
> Meanwhile, Bob Pharma takes out a default patent (20 years, ordinary
> damages, no arbitration, etc.).
>
> In any proceedings, Joe's burdens of proof are a lot lower than Bob's.

How do you plan to make them lower?  If he sues someone and they find
prior art, will his lawsuit still prevail?

Legal cases tend to be decided by binary decisions.  Lots of people
put work out trying to make those decisions very binary (with everyone
wanting to be on the right side).  It is hard to make binary decisions
into gradually sliding ones.

Cheers,
Ben