Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Thu, 21 Sep 2006 19:15:29 -0700

Ben Tilly wrote:
> $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.


Right.  $75 is a basic filing fee.

If Joe needs to file an action with an arbitrator, it'll behoove him to
pony up a few hundred bucks for a search by a certified agency in
addition to the few hundred bucks in arbitration fees.   All told, to
bring an action, Joe is on the hook for approaching-but-not-quite
$1K.

In Joe's particular case, a UI widget well suited for browsers,
originality isn't going to be that hard to show.

Now, I know what you (should be) thinking.   Perhaps
18 years ago somebody working on on-line manuals for
IBM had an idea, resulting in a very broad patent, and
conceivably, just conceivably, anything based on Joe's
recent innovation is also in scope of that earlier patent.
Not that any of that earlier work got practiced in anything
close to what Joe did.   Not that when that more broad patent
was filed people had anything like what Joe did in mind.
Well, fine.   That doesn't invalidate Joe's claim in the slightest.
It *conceivably* gives the owner of that original patent some
additional claim but, (a) not relevant here and (b) moving forward
at least, the possibility of limited patents like Joe's is a good
reason to put a very high burden on very broad, longer-term
patents.   In short,  this is a partial answer to the "follow-on
innovation" problem.



>
> 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.
>

*You're* telling *me*?   Tell me about it.   But, for example,
even when quite financially challenged about 6 years ago, I could
have afforded a deal like Joe's but wrt Arch.   And this wouldn't have
obviously changed the calculations of a Canonical with respect to
my inventions -- they'd have had to kick me high five or barely
six figures.   The fees here are getting down into friends-and-family
range.



>>
>> 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?
>

Joe shouldn't use these patent options for a claim where that is a serious
possibility.   Conversely, if Joe's patent is about a clever way to manage
bookmarks in a WWW browser, and it shows up in IE and/or Mozilla
after Joe gets some hackers interested in it (regardless of whether or not
he can show a direct line of transmission) then it shouldn't matter if
something vaguely kinda-sorta analogous happens to have been described
re Xanadu.    (If, on the other hand, the IE or Mozilla hackers very clearly
show that they told people they announced and visibly began work on the 
feature
6 months before Joe filed, then they 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.
>

It's a bit like the patent equivalent of small claims court (but 50x 
larger stakes
or so).   You can throw in some penalties for Joe for wantonly bogus 
filings,
if you like.   

Hey, it's a darn sight better than some proposals that have been seriously
made like "Let's legislate that software patents have a shorter term than
others."

-t