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IBM Files Declarations and An Idea to Deal with Stupid Patent Tricks
Tuesday, November 23 2004 @ 06:37 AM EST

IBM met the deadline to file their executives declarations, as you knew they would. Unfortunately, they are sealed, so we don't get to read them directly. Bits and pieces may end up quoted in other documents, however, so we'll likely get the idea one way or another. Hopefully, not by SCO "forgetting" they are sealed and reading them aloud on the courthouse steps or faxing them to a journalist or something. Here is the Pacer information:

11/19/04 331 SEALED Declaration of Alec S. Berman (blk) [Entry date 11/22/04]
11/19/04 332 SEALED Declaration of Irving Wladawsky-Berger Re: (blk) [Entry date 11/22/04]
11/19/04 333 SEALED Declaration of Samuel J. Palmisano (blk) [Entry date 11/22/04]
11/19/04 334 SEALED Declaration of Andrew Bonzani (blk) [Entry date 11/22/04]

You'll no doubt recall that Judge Brooke Wells' Order gave them 30 days to file these:

"2. IBM is provide affidavits from the Board of Directors, Mr. Palmisano and Mr. Wladawsky-Berger regarding production of all non-privileged documents pertaining to IBM's Linux strategy. The affidavits are to be filed within 30 days from the entry of this order."

Andrew Bonzani is an attorney and a corporate officer, Assistant Secretary, at IBM, or to be precise, he was as of April. I don't know for sure now, but I assume he still is. Alec Berman is also an in-house IBM attorney, whose name appears on documents filed in the case all the time. Why they also submitted declarations, I don't know. Conceivably Berman's might have to do with the privilege logs issue, because both sides were to prepare and exchange privilege logs within 30 days as well, but I saw no requirement to file them. However, letting the judge know it happened would be conceivable. And Bonzani would likely be able to speak to what is in the corporate records, one of the things SCO asked about. But I'm just guessing. That is the problem with sealed documents. All you can do is make an educated guess.

And here's an idea. What would you suggest should be done about stupid patent tricks if you are convinced that there is absolutely no way that patents on software will ever be stopped in the US? I'm not saying I necessarily am of that persuasion, because the patent-GPL issue has to be resolved. But if I were, I don't think I could come up with a more appealing solution than this one: Ken Arnold suggests that we make filing a ludicrously obvious patent fraud:

"Declare that ludicrously obviously invalid patents are a form of fraud. And enforce that by giving anyone who proves patent fraud by ludicrosity gets paid triple their costs as a reward, plus any damages they can show were caused by the issuance of the patent.

As a starting point, I would define a "ludicrous" patent as one that any practitioner normally skilled in the art would recognize as having prior art. MicroSoft's is our most recent poster child, who seems to be seeking a patent on an IsNot operator that checks if two pointers point to the same place in memory. . .

It also creates a liability for filing ludicrous patents, which (beyond filing costs) there is none now. It helps protect every major player who isn't using patents as offensive weapons. . . . To be fair to those holding patents the predate this rule, I would give holders one year to voluntarily void any patents they hold, but after that, all unexpired patents would be fair game."

It's a cunning idea, since it keeps lawyers busy making money "cleaning up the pool," as he puts it, and it surely appeals to the childish corner of my heart that wishes there really were inevitable punishments that fit the crime perfectly for all wrongdoing this exact minute, and I love the concept of a guy going to prison and being asked what he's in for and having to answer: "Ludicrousness." But I see some issues that would have to be resolved before it could work legally. You'd have to define a clear line in the sand, a definition of obviousness that couldn't be stepped beyond unless it was on purpose, and I don't see how you could. Maybe you do. But no law can be so vague that it's impossible to know precisely when you are breaking it. How could you define clearly enough where that line is?

Then there is another issue. Who do you punish? The hapless employee who has his name on the patent or the corporation that made him do it? Let's take the IsNot patent. Paul Vick, whose name, poor thing, is on that patent, writes about his feelings on his blog:

"Personally, I don't believe software patents are a good idea. I realize that algorithms lie in that grey area between a mechanical process (which is patentable) and an abstract idea (which is not), but at a purely practical level I think that software patents generally do much more harm than good. As such, I'd like to see them go away and the US patent office focus on more productive tasks. I have nothing but contempt for any company that tries to use patents to achieve what they could not through purely competitive means. This includes Microsoft, should they ever choose to do so or have they ever chosen to do so. (I'm not aware of any such situation, but I'm hardly omniscient.) . . .

"However, software patents do exist. So while the good fight goes on to get rid of them, I also believe that it would be dangerously naive to not play the game as best we can in the meantime in as principled a way as possible. . . .

"It's become a Mexican standoff, and there's no good way out at the moment short of a broad consensus to end the game at the legislative level.

"So that's how I feel about software patents in general. As far as the specific IsNot patent goes, I will say that at a personal level, I do not feel particularly proud of my involvement in the patent process in this case."

We might ask everyone to stand up for what they believe in and refuse to file the patent, but that's hardly likely to happen. So what would Ken's new law do with the unfortunate Mr. Vick? No matter how we feel about patents, it's impossible not to feel for him as a human being. So, does he go to jail or pay the fine? Or does Microsoft? See what I mean? Writing laws is harder than it looks.

Of course, that is only part of the reason silly laws get passed. Sometimes they get passed just because someone wanted a monopoly grant. But one way to tell if a law is working out or not is to compare a country that has the law with one that does not. James Boyle does just that in his column, "A natural experiment" where he examines how Europe's grant of copyright protection on databases worked out, compared with the US where no such right exists:

"What we really need is a test case where one country adopts the proposed new intellectual property right and another does not, and we can assess how they are both doing after a number of years.

"There is such a case. It is the 'database right.' Europe adopted a Database Directive in 1996 which both gave a high level of copyright protection to databases, and conferred a new 'sui generis' database right even on unoriginal compilations of facts. In the United States, by contrast, in a 1991 case called Feist, the Supreme Court made it clear that unoriginal compilations of facts are not copyrightable. (The case is not as revolutionary as it is claimed to be. Most of the appeals courts in the United States had long held this to be the case. In fact, a tenet of the US intellectual property system is that neither facts nor ideas can be owned.) Since 1991 the U.S. Congress has managed to resist frenzied attempts by a few database companies to create a special database right over facts. Interestingly, apart from academics, scientists and civil libertarians, many database companies, and even those well-known communist property-haters, the U.S. Chamber of Commerce, oppose the creation of such a right. They believe that database providers can adequately protect themselves with contracts, technical means such as passwords, can rely on providing tied services and so on. Moreover, they argue that strong database protection may make it harder to generate databases in the first place; the facts you need may be locked up. The pressure to create a new right continues, however, aided by the cries that US must 'harmonise' with Europe. So here we have our natural experiment. . . .

"Intellectual property rights are a form of state-created monopoly and 'the general tendency of monopolies,' as Macaulay pointed out, is to 'make things dear, to make them scarce, and to make them bad.' Monopolies are an evil, but they must sometimes be accepted when they are necessary to the production of some good, some particular social goal. In this case, the 'evil' is obviously going to be an increase in price of databases, and the legal ability to exclude competitors from their use – that, after all is the point of granting the new right. The 'good' is that we are supposed to get lots of new databases, databases that we would not have had but for the existence of the database right.

"If the database right were working, we would expect positive answers to three crucial questions. First, has the European database industry’s rate of growth increased since 1996, while the US database industry has languished? . . .

Second, are the principal beneficiaries of the database right in Europe producing databases they would not have produced otherwise? . . .

"Third, and this one is harder to judge, is the right promoting innovation and competition rather than stifling it?"

Reed Elsevier, the owner of Lexis, and Thomson Publishing, the owner of Westlaw, are the principal beggers for a similar monopoly right on databases in the US, despite each already having a 20+% profit margin, Boyle reports, and they will not like his conclusion about how the database right has played out in Europe, namely that it has hurt innovation and was "drawn much too broadly and triggered too easily in ways that are profoundly anti-competitive":

"Bottom line? Europe’s industry did get a one-time boost, and some of those firms have stayed in the market; that is a benefit, though a costly one. But database growth rates have gone back to pre-Directive levels, while the anti-competitive costs of database protection are now a permanent fixture of the European landscape. The US, by contrast, gets a nice steady growth rate in databases without paying the monopoly cost. (Second rule of thumb for regulators: Do no harm! Do not create rights without strong evidence that the incentive effect is worth the anti-competitive cost.). . .

"The facts are now in. If the European Database Directive were a drug, the government would be pulling it from the market until its efficacy and harmfulness could be reassessed. At the very least, the Commission needs a detailed empirical review of the Directive’s effects, and needs to adjust the Directive’s definitions and to fine-tune its limitations."

As usual with Boyle's writings, the pleasure is in the reading, so I encourage you to read the entire column. I enjoyed it immensely and I'm sure you will too.

By the way, there is an article by Peter Galli that echodots sent me that reports the next version of the GPL will be dealing with patents. It's taking so long because they are dealing with the endless variety of patent laws around the world, and they want the GPL to stand everywhere, ideally. Eben Moglen says that before the final version is set in stone, they'll open it up to the community to take a look and give input, and this is just to say that Groklaw is available for such a purpose, as I'm sure others will be too.


  


IBM Files Declarations and An Idea to Deal with Stupid Patent Tricks | 168 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Alternative Idea
Authored by: Anonymous on Tuesday, November 23 2004 @ 06:48 AM EST

a/ Software patents can be issued, but are not valid until proved so in court -
the 'owner' must bear the costs of this legal case

b/ Software patents can only be issued to individuals

c/ Software patents must be currently used by the same individual ( or a company
that employs the individual )

d/ Any/all damages for violation of that individuals intellectual property will
be paid directly to the individual named in the patent

So - companies can licence the ideas from the individual, but only the
individual can benefit from the idea. The company didn't have the idea - so it
can't claim ownership of it.

[ Reply to This | # ]

A Much Simpler Alternative
Authored by: elderlycynic on Tuesday, November 23 2004 @ 06:55 AM EST
A much simpler alternative is to change civil law so that,
if A sues B for X (whether money or an injunction to stop),
and the court finds the case baseless, A can be required
to pay B up to the amount sued for.

[ Reply to This | # ]

Corrections here
Authored by: Anonymous on Tuesday, November 23 2004 @ 07:03 AM EST
so PJ can find them

[ Reply to This | # ]

OT Here Please
Authored by: fudisbad on Tuesday, November 23 2004 @ 07:03 AM EST
For legal filings, current events and CC10 rulings (hint, hint).

[ Reply to This | # ]

Andrew Bonzani is still counsel for IBM
Authored by: Anonymous on Tuesday, November 23 2004 @ 07:16 AM EST
According to Bluepages(our employee directory, think yellowpages, but blue for
IBM).

[ Reply to This | # ]

IBM Files Declarations and An Idea to Deal with Stupid Patent Tricks
Authored by: jlar on Tuesday, November 23 2004 @ 07:17 AM EST
A couple of years ago the Danish Newspaper Publishers´ Association (the Danish
daily newspapers' trade political organisation) filed suit against a company
performing a service similar to that of news.google.com. Their argument was that
the company could not use their databases for commercial purposes. They won the
case.

The result is that it is not possible to get an overview of the Danish news
stories. This has greatly deteriorated the value of Danish news to me (I get the
international news from news.google.com now instead).

I hope that we will get rid of this law at some time - it is clearly hindering
innovation.

[ Reply to This | # ]

about: An Idea to Deal with Stupid Patent Tricks
Authored by: skip on Tuesday, November 23 2004 @ 07:17 AM EST
The 'ludicrous patent' idea would never work I'm afraid.

As an example:

Coder A writes something he thinks is new and innovative, but he's not really up
on new technology. However, he starts a business using this technology, and
patents it.

Lawyer B, who works for some big corporation, spots this patent, and invests
time in building a case to prove the patent owned by Coder A is 'ludicrous'.

Coder A gets sued out of the blue, loses, and has to pay vast damages, when all
he did wrong was not research enough....

My point? Any sensible law that can be twisted to make large amounts of money or
maintain a manopoly or profit margin will be twisted, usually with staggering
speed. This happened with the DMCA, which some companies have tried to use to
destroy competition/kill of interoperating products, on the grounds that the
competing product contravenes the DMCA.

The only solution, at least for programming, is to ban patents on software, and
that is _so_ not going to happen.

My feeling? Let the IP wars run, let all these proprietary companies in the US
sue each other so much that they can't innovate any more, then move in with open
source alternatives. It's hard (to the point of pointless) to sue every open
source producer, because so many are either not-for-profit, or are run as
projcts without a registered company entity to sue. It seems to me that the main
motivation for suing is to make money. So why sue someone that will cost more to
sue then you can make off them?


---
The above post is released under the Creative Commons license
Attribution-Noncommercial 2.0.
P.J. has permission for commercial use

[ Reply to This | # ]

Who do you fine?
Authored by: Anonymous on Tuesday, November 23 2004 @ 07:22 AM EST
Companies are merely 'legal persons', as such they have no conscience or
awareness. It makes no sense to make a legal entity responsible for the actions
of a human being, unless of course your purpose is (as the creation of companies
as juristic persons was indeed intended to do) to avoid responsibility for your
actions by 'blaming' the legal entity.
So in the case of the isnot operator, the human with his signature on the paper
should be fined, jailed, whatever. Just imagine (to paraphrase a famous song...)
a world where people take responsibility for every action they take, and reap
the benefits and the pitfalls for doing so.
One gets the feeling we would have a surplus of toilet cleaners and
streetsweepers and precious few 'captains of industry!' The law might be
complicated but justice is not.

[ Reply to This | # ]

Slightly OT: databases and copyrightin Dutch law
Authored by: Anonymous on Tuesday, November 23 2004 @ 08:11 AM EST
In the Netherlands there was an interesting case which I heard about because the
man involved used be live nearby. A bit of websearching allowed me to fill in
some of the details below.
The case (1991) set the precedent for whether databases are copyrighted (in the
same way as all other forms of writing either published or intended for
publication).

van Dale Lexografie BV v. Rudolf Jan Romme

Ruud Romme took the largest dictionary of the Dutch language (the Van Dale, like
a Dutch Webster's), and extracted all the header words (not the definitions). He
used this for making anagram and crossword solvers. He argued that such a word
list was not copyrightable (only the definitions were).

At first the Court agreed with him. The Supreme Court said that a word list
would have copyright only "if it results from a selection process
expressing the author's personal views". At the end of the appeals process
it was ruled that the vanDale word selection did qualify that test.

[ Reply to This | # ]

M$ have abused their patents
Authored by: Paul Shirley on Tuesday, November 23 2004 @ 08:51 AM EST
Paul Vick:I have nothing but contempt for any company that tries to use patents to achieve what they could not through purely competitive means. This includes Microsoft, should they ever choose to do so or have they ever chosen to do so. (I'm not aware of any such situation, but I'm hardly omniscient.) . . .

Maybe someone should tell him about Microsoft killing ASF read support in Virtualdub (and no doubt any other projects they know about)? A clear attack on an open source project via a dubious patent.

Perhaps it only counts for him if they attack a commercial rival?

The idea that the ASF file format could justify a patent is a good candidate for the 'ludicrous patent' idea as well.

[ Reply to This | # ]

A simpler idea: make them short
Authored by: jguillaumes on Tuesday, November 23 2004 @ 09:41 AM EST
I think that SW patents are really a bad idea, and as an european I've signed up
into the multiple initiatives to put down those things in the EU.

Said that, in the case the SW patents were inavoidable (like it seems it's the
case in the US)... perhaps a very simple way to put back the patent system to
where it was supposed to be (a way to incentive inventors and innovators and to
protect them from the Big Guys) should be to grant those SW patents for a really
short life time. I mean, to "synchronize" the SW patent system to the
"internet time".

How short should be good? Given the speed of things in the SW field, I think
anything over 3 years should be too much. IMHO 2 years would be fine. A 2 years
SW patent could give the "inventor" enough time to exploit his work,
and at the same time, it would place the "invention" in the PD early
enough to let other people to build on the invention.

Of course, this should not bar the need of protecting the system from ridiculous
patents like the isNot operator and similar things...

What do you think?

[ Reply to This | # ]

"Who do you punish" ?
Authored by: Anonymous on Tuesday, November 23 2004 @ 09:56 AM EST
That's idiotic:

"You'd have to define a clear line in the sand, a definition
of obviousness (...) How could you
define clearly enough where that line is?"

Isn't this the role of a "Patent Office" ?
Isn't there already a law that says "un-obvious" in
"invention"

"Then there is another issue. Who do you punish? "

Why noy the USPTO himself ? (or the WIPO or EPO) THEY get the money of the
patents !

So this idea is completely NUTS: it's normally and officially already the
situation, but in reality it's not.

So why not ? Well, that's simple:

If a PO (Patent Office, WIPO, EPO, USPTO, INPI, ...) accepts a patent, it will
give
him THOUNSANDS of $$$ for 20 years of income.

Get real: if someone asked you to decide (by "yes" or "no")
if an idea is valid,
and proposed to give you money if your answer is "yes", what would you

answer in 99% of the cases ?

So the REAL problem with patents (software or not) is that the people who
decide and those who benefit from that decision are the same. That's called
corruption. End of story.

I remeber even an interview with the director of the EPO asked about that
question and the guy answering: "The integrity of our examiners is total,
and
they are not influenced by the pressure that their decision will or will not
give
income to us for years". How dumb do they think we are ?

Zoltan.

PS: For those looking for flame-wars please check first a patent database with
me (Hubert Zoltan) as inventor.

[ Reply to This | # ]

Further Extension to the Patent Idea
Authored by: Rob M on Tuesday, November 23 2004 @ 10:04 AM EST
In addition to making the filing of the ludricous patents fraud, make sure there
is some sort of effective censure on the patent clerk that actually granted it,
something that counters the "push 'em through" mentality.

[ Reply to This | # ]

Sorry Paul - that's baloney
Authored by: Anonymous on Tuesday, November 23 2004 @ 10:19 AM EST
I can't accept this part of his blog entry at face value:
I have nothing but contempt for any company that tries to use patents to achieve what they could not through purely competitive means. This includes Microsoft, should they ever choose to do so or have they ever chosen to do so. (I'm not aware of any such situation, but I'm hardly omniscient.)

He *works for* Microsoft. He must be blind if he can't see Microsoft trying to "use patents to achieve what they could not through purely competitive means". Unless by "competitive" you mean "destroying the competition", Microsoft has never done business by "purely competitive" means. Maybe Paul wasn't paying attention when Ballmer made his most recent "all your base are belong to us" speech.

[ Reply to This | # ]

Comments From an Inventor.
Authored by: Anonymous on Tuesday, November 23 2004 @ 11:18 AM EST
Having been through the patent process here are a few more ideas:

1. Employees sign employment agreements which assign all their patent rights to
their employers as a condition of employment. Most agreements require the
employee to "cooperate" in the application process, fraudulent or
otherwise, obviously under threat of being fired then sued. The first solution
to the patent mess is to hold the employee harmless due to duress. All
penalities should be leveled against those to whom the patent has been assigned
under these circumstances.

2. Create an objective measure for due diligence on the prior art and
obviousness. Failure to meet this measure renders the patent invalid regardless
of the patentability of the invention and subjects the corporaton to fines.

3. All patents should be "issued" subject to a one year review period.
During this period ANYONE can challenge the patent, provide evidence, and have
the patent sent back to the patent office for review at the applicant's expense.
This automatically generates the prior art that the inventors fraudently ignore
and the patent office has no real interest in investigating. It also levels the
playing field between the rich-greedy corporations and the single individual
inventor.

4. After the one year review period the patent becomes effective. Any challenge
thereafter automatically requires yet another review by the patent office --
this time at the challenger's expense and require a higher level of evidence.
The review would result in "findings" which cannot be disputed in
court. This makes the patent office do its job.

5. Require disclosure of methods in sufficient detail so one "skilled in
the art" can duplicate them with some accuracy and thus demonstrate that
the method is truely unique.

6. Patented inventions not borught to market within 5 years of issueance
automatically lapse. This reduces the patent office workload for junk-submarine
and other garbage inventions.




[ Reply to This | # ]

issues with requiring a human owner to patent
Authored by: Anonymous on Tuesday, November 23 2004 @ 11:19 AM EST
In the current environment, where patents are granted for obvious ideas,
requiring the human inventor of the patent to own the patent is unfair. Who
really invented the ISNOT patent idea? It is likely not just the one person
whose name is on the patent, it probably came out of discussions within the
development group, was inspired by a number of customer complaints (some of
which may have explicitly asked for exactly this function), and was suggested
multiple times in a huge number of earlier discussions and requests long before
the moment in time when they actually decided to implement it. So, assigning
such frivolous patents to an individual (or even a group of individuals) is
unfair - none of them demonstrated any particularly extraordinary imagination or
insight.

However, when there is a penalty for frivolous patents, that raises the bar.
Coming up with an idea that is clearly not obvious does require significant
amounts of imagination and insight - and that implies that a specific human or
small group of human inventors is clearly responsible and deserve to be
recognized and rewarded.

On the other hand, individual inventors might hesitate to try to patent ideas,
even ones which are truly remarkable breakthroughs, because of the personal
liability that they might encounter if an obscure (to them) journal is uncovered
making it seem that their invention was covered by prior art. So, companies
will almost certainly come to a shared ownership arrangement and take some of
the risk for defending against challenges to the patent. The company in such
cases will also be covering the costs of applying for the patent in the first
case and the (now more formidable) costs of testing that the patent idea is not
likely to be found frivolous. Also, people who are imaginative enough to come
up with patentable ideas are usually (but not always) known for their capability
and are hired with appropriate level of reward to cover the expectation of such
ideas - perhaps there should be some way of distinguishing such cases and
allowing the company to apply for patents; but when an employee is not hired
with an expectation of coming up with patentable ideas, the patent would
normally be assigned to the individual rather than the company.

Generally, I would say that the important regulation to persue is the one that
makes issuing a bogus patent subject to some sort of significant penalty, and
that the idea of requiring the patent be issued to human rather than corporate
individuals is a side-issue that has no clear universal advantage, and trying to
find a balance of the benefits and problems with this would detract from the far
more important purpose of penalizing bogus patents.

John Macdonald

[ Reply to This | # ]

IBM Files Declarations and An Idea to Deal with Stupid Patent Tricks
Authored by: blacklight on Tuesday, November 23 2004 @ 11:30 AM EST
"Then there is another issue. Who do you punish? The hapless employee who
has his name on the patent or the corporation that made him do it?" PJ

I vote for punishing the USPTO's top management as a start.

[ Reply to This | # ]

An Idea to Deal with Stupid Patent Tricks
Authored by: llanitedave on Tuesday, November 23 2004 @ 11:39 AM EST
The main problem I see with any of this is that, in the current political
climate, I'm afraid that "reforming" the concept of software patents
might be just as difficult as doing away with it altogether. Either way, there
are powerful vested interests that would like to see the situation remain just
as it is.

If reform IS more possible than elimination, then what I would like to see
(along with some other very excellent ideas that have been proposed here), are
the following:

1. If a patent is overturned for any reason, then the company that it was
granted to should pay all the costs associated with the challenge that led to
the overturn.

2. Patent applications should be published in the trade press for the field in
which the patent would apply; i.e., a proposed software patent would be
published in leading software journals, a patent application for a
bio-engineered product would be published in leading bio-science journals, etc.

3. The field of applicability and the proposed use of the patent would be
published along with the application, and would then be limited to the use
declared. If the patent is declared applicable to say, web browsers and file
management systems, then enforcement of that patent would forever be limited to
those systems.

4. In keeping with (3), a clearly stated policy prohibiting "overly
broad" patents would be stated and enforced.

5. The director of the patent office would be a civil service position, rather
than a political appointment.

6. A "use it or lose it" policy would be enforced. Stealth patents
would be prohibited.

---
Of course we need to communicate -- that goes without saying!

[ Reply to This | # ]

I would "punish" the patent office
Authored by: Anonymous on Tuesday, November 23 2004 @ 11:48 AM EST
If I were a federal patent or appealate judge, and a "silly patent"
case came before me, I'd seriously entertain any motion along these lines:

"Your honor, as evidenced by this and other mistakes, the general public
can no longer rely on the granting of a patent as prima facia evidence of the
validity of a patent. Therefore, we want a ruling that the burden of proof of
the validity of all patents be shifted to the patent owner, except in cases
where either a court or the patent office has carefully reviewed a challenged
patent and upheld it."

Motion granted.



I would also chastize Congress for not adequately funding the patent office, and
I'd let Congress know that if and when the Patent Office was able to do an
adequate job, I would modify my ruling but only for patents granted AFTER they
started doing their job properly.

[ Reply to This | # ]

Can anyone clarify...
Authored by: Anonymous on Tuesday, November 23 2004 @ 11:50 AM EST
"Interestingly, apart from academics, scientists and civil libertarians,
many database companies, and even those well-known communist property-haters,
the U.S. Chamber of Commerce, oppose the creation of such a right."

Now: where does this sentence switch from the (exceptional) supporters to the
opposers?

[ Reply to This | # ]

A simpler, more straightforward idea
Authored by: Anonymous on Tuesday, November 23 2004 @ 12:03 PM EST
Make independent invention a defense against patent infringement, on the grounds
that it proves "obviousness."

[ Reply to This | # ]

IBM Files Declarations - sealed?
Authored by: Anonymous on Tuesday, November 23 2004 @ 12:12 PM EST
I thought the executives had nothing (new?) to say - so why bother sealing them
if they say nothing?

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An Idea to Deal with Stupid Patent Tricks
Authored by: ujay on Tuesday, November 23 2004 @ 12:36 PM EST
There is a logical flaw in the concept of making compromise or deals to limit
the damage of software patents. The flaw is in allowing them to exist in any
form.

Compromising with SWP's is as ludicrous as compromising with serial killers, or
street gangs. We would not tell a killer he can kill 3 people this year, but
only non-contributing members of society. We would not tell a street gang that
they can sell 32 pounds of crack this year, but only away from schools.

That may be comparing apples and oranges, but I stand by the analogy. SWP's are
damaging to the developer community (closed and open) which leads to damaging
the consumer sector, and the overall economy. Why tell those who would damage
the industry that we will allow it under certain circumstances?

The IP Fudsters are doing their level best to portray FOSS and it's adherents as
anti capitalist, and against patents. They are not interested in informing the
public of how they deliberately blur the distinctions between patent, copyright,
trade secret and trademark. They want to give us compromises, so they can
continue to patent software. Any complaints about the compromise are eulogized
into their 'FOSS is communist' sermon.

My opinion is that there is no room for patents on software. Traditional
copyright will need adjustment to limit the time of copyright ownership - 95
years is way too long in the SW industry. But copyright should remain the
domain of software code author protection.



---
Windows User: HNV82-29936 BotNet Node: 1287345

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  • Yes indeed - Authored by: Anonymous on Tuesday, November 23 2004 @ 05:14 PM EST
IBM Files Declarations and An Idea to Deal with Stupid Patent Tricks
Authored by: Anonymous on Tuesday, November 23 2004 @ 01:06 PM EST
Notice how you do not question why IBM "SEALED" the documents while
SCO had them open. IBM has been and continues to play the PR card. This is not
a case of Open vs closed source. This is a case of IBM putting code they did
not have the legal access to open source and dumping it in an opensource project
called Linux. The case is NOT about Linux vs Microsoft. This case is about SCO
vs IBM, WHILE IBM wants to make you believe it is otherwise to avoid facing
consequences for their own misdeeds.

I myself am a Linux user and have been since the beginning. However I have with
an OPEN MIND mind you, read the documents, not reading the interpretation on
GrokLAW and come out with a completely different viewpoint. I believe SCO needs
to offer an olive branch to the linux community after the case is resolved.
HOWEVER IBM is the one making things worse here, not SCO.

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My legal test: deception
Authored by: PolR on Tuesday, November 23 2004 @ 01:10 PM EST
A patent would be fraudulent when:

- there is deliberate misrepresentation about prior art and patent novelty

- there is deliberate misrepresentation about the extent of the search for prior
art


I suggest that every patent application is accompanied wwith a declaration
listing the prior art research having been done as well as the prior art being
found. Ideally the USPTO should reject patents when not enough research was
done.

People are allowed to be stupid. If they just do a lousy job, they should not be
punished. But if they deliberately tweak the application to be misleading, then
there is fraud.

Proof of misrepresentation can be obtained by subpoenas for emaails and
deposition of the patent writing team. Patterns of systematic misleading
applications can also show intent.

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The problem is a goverment department that makes it's money out of granting monopolies.
Authored by: Anonymous on Tuesday, November 23 2004 @ 03:04 PM EST
The fact that it is going to bring down western science is
not a problem for them.

Got to change the rules, granting a patent needs to be a
loss for that department not a gain.

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The Walrus
Authored by: UglyGreenTroll on Tuesday, November 23 2004 @ 03:07 PM EST
It's hard to respect Paul Vick. On the one hand he regrets his part in the "isNot" patent, and on the other hand he must have signed off on it as an inventor. As well, many companies give bonuses to employees who deliver patents. Did Mr. Vick receive such a bonus?

If Mr. Vick regretted the patent so much, he should have refused to participate rather than blogging about it afterwards. As it is, he's a walrus crying over oysters.

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  • Exactly - Authored by: Anonymous on Tuesday, November 23 2004 @ 06:44 PM EST
Patented Irony
Authored by: Anonymous on Tuesday, November 23 2004 @ 03:16 PM EST
I write a program in an established programmming environment that was licensed
for this purpose. I compile the code using a complier that was licensed for
this purpose. I share/sell my result as is allowable by the licenses mentioned.
Someone sues me for patent infringment because they did the same thing before I
did. Now do they own the the code or does the licenser of the technology?

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  • You own it - Authored by: Anonymous on Tuesday, November 23 2004 @ 07:42 PM EST
Databases in Europe vs USA
Authored by: Anonymous on Tuesday, November 23 2004 @ 03:21 PM EST
Factoids:

(1) the most widely-used database is opensource and European.(MySQL)
(2) the most successful commercial databases are American (Oracle and
Microsoft)

Does that say anything about whose system is more successful? It's not obvious
to me.

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Hapless Inventor-of-record
Authored by: Anonymous on Tuesday, November 23 2004 @ 03:28 PM EST
PJ asks what would happen to the poor employee whose name was on a patent
declared fraudulent. Mr. Arnold had the answer already: the sap has a year to
void it. If he has no power to void it (e.g. because of a contract with the
employer) that should be a valid defense, and the employer ought to be liable,
then.

A bright line? Certainly the majority of software patents would be invalidated
if they were required not to be obvious to the average college senior in the
field. (That could be given objective status, where necessary, by posing them
as exam questions to real students, but certainly MS's "IsNot" would
not need such treatment.) That would establish a lower bound, and minimize the
cost of most enforcement.

Is that where the line should be? Probably not. A better measure could be
established by looking at what patents were voided voluntarily during the
one-year grace period. Old patent law has plenty of useful precedent, if it
would just be applied. On-line auctions, on-line gambling, on-line banking are
obvious by the traditional composition rule, just as the basic notions of
rocket-driven airplanes, cars, and boats would be obvious even when the
fuel-efficient rocket designs themselves were entirely new, or likewise electric
heating element based ovens and radiators.

Nathan Myers

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A simple suggestion
Authored by: Anonymous on Tuesday, November 23 2004 @ 05:31 PM EST
I've made this suggestion before, as have others, on how to limit the abuse of
patents, both software and hardware.

Simply enstate a procedural rule so that whenever a patent conflict enters
litigation, the first step is an automatic review of the validity of the patent,
the costs of which are paid for by the plaintiff. Only after the patent is
found to be valid will the trial be allowed to proceed. The whole case
evaporates if the patent is rejected, of course.

This simple change would make potential litigators think twice before starting a
challenge with a less-than-airtight case. It would also make it easier for the
defendant to actually challenge the patent claim in court rather than settle out
of court. And it would help the industry both by discouraging frivolous
litigation and by removing invalid patents from the patent pool.

It's not a panacea, but it would help to make the playing field a lot more
level.

---
m(_ _)m

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Yet another alternative
Authored by: Anonymous on Tuesday, November 23 2004 @ 06:09 PM EST
If we can't get rid of patents for software then here's my 2cents.

1. Make it so that those who request patents provide [working] source code
implementing the idea. The source code (if embedded within other code) should be
easily identifiable and commented.

This way, the idea can be reused (that's the purpose of patents right?). It
would also help understand what the patent is about. If a patent examiner (or a
jury) sees the IsNot implementation, how long would it take to show that it's
trivial?

2. Code that the patent owner has which uses the patent should clearly indicate
which patent it uses, which are accepted, which are pending and which are
licensed. If I want to do a better Minesweeper, I should know what not to
infringe on. Yes, their might be other patents that I infringe on but at least
that's a start.

3. Anyone should be allowed to license software patents at the same price (which
could only be lowered over time). No cross-licensing allowed. If Cie A wants to
license its portfolio to Cie B, they should apply a ($/use; $/application;
$/unlimited usage; or some function of gross sales on each individual patent.
This may seem extreme but if these patents are really such great ideas, then
they should be defendable and identifiable one patent at a time. Otherwise, the
patents are not that great so we should assume that they are simply used for
FUD. By forcing a unique price, we avoid oligopolistic and monopolistic tactics
(repeat that 10 times). By forbidding cross-licensing, we again reduce
oligopolistic tactics and we make the unique price schema possible. [f(gross
sales) would be nice for gratis and free software. If IBM licenses some patents
as a f(gross sales) and the software is gratis - distribution remains possible.
If RedHat wants to sell the software, they need to pay the license.

4. Software patents should need to be defended the same way that Trademarks
are.
This is necessary to disable the submarine patent strategies. If a company is
aware that their patents are being infringed and they do nothing about it why
should they reap the benefits? (Sun should like this - Kodak less)
Also, this would be good for open source software (commercial or otherwise)
since it would be hard for a company to claim that they didn't know their
patents were being infringed upon when the source code is available.

- pawn

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Line in the Sand
Authored by: Anonymous on Tuesday, November 23 2004 @ 06:41 PM EST
Instead of trying to draw a line in the sand for filing obvisous patents, why
not have it so if a patent is judge to be invalid, for what ever reason, in a
court of law the patent holder has to pay the other side's legal bills, 3x the
damges and a penalty of $100,000.

So a company would have to think twice about pursing a questionable patent, and
if they themselves are preemptively sued for a patent they have the option of
releasing it and not having to pay the penalty.

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Only allow solutions to "unsolved" problems to be patented.
Authored by: Anonymous on Tuesday, November 23 2004 @ 08:03 PM EST
Here is my suggested patent system:

a. A "unsolved problem" is registered for a small fee with the patent office by a potential inventor or licensee. A $2000 bond is held by the patent office.
b. Patent office is required to publish problem in a clear and unambiguous fashion. E.g. "Create an electric light bulb that burns for more than 24 hours."
c. If a solution is discovered in under 12 months the discoverer may claim the $2000 bond, in exchange for giving up the right to patent their discovery.
d. If after one year the bond has not been claimed the bond will be returned, the problem will be considered "unsolved" and a solution to the problem may be patented.

An action shall only infringe a patent if it is with respect to a problem the patent was intended to solve.

It seems likely that people would claim the bond for the "unsolved problems" within the year - providing a disincentive to spam the patent office with trivial and overbroadly defined problems. I also don't think that it would put too big a burden on the inventor, as it would usually take well over a year to develop and market a solution to a real world problem.

-- John McCabe-Dansted

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Software patent infancy
Authored by: Anonymous on Tuesday, November 23 2004 @ 10:54 PM EST
As I see it, the biggest problem with software patents in the USA is the
"land grab" mentality. The over-broad early patents hurt now, but will
begin to expire in about another ten years. Today's headache will be tomorrow's
best prior art citations (and being patents, the USPTO is much more likely to
use them as prior art). If we can just hold out for two decades after the filing
date...

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Who to punish?
Authored by: AveryAndrews on Tuesday, November 23 2004 @ 11:09 PM EST
How about quintuple restitution of all actually collected licensing fees back to
the people who paid them, to be paid by whatever entity collected them in the
first place? And triple the requested damages for any lawsuits, to the
defendant (alleged infringer), from the plaintiff (that would be nine times the
alleged damage caused by the infringer if willful infringement is claimed). If
someones buys a patent and then sells it, they'd be liable for the fees they
themselves collected, until the patent expires.

This would keep the engineers and programmers out of the firing line, but not
the suits who make the decisions about what to patent and which patents to
defend.

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An Alternative to patents
Authored by: rkupke on Wednesday, November 24 2004 @ 04:38 AM EST

Create an organistion (Problem Solvers) that hosts a set of competitions similar to the X–Prize.

The basic idea goes like this:

  1. You think a problem should be solved, so you write up a description of the problem and a test suite a solution must pass.
  2. You submit the description and the test suite to Problem Solvers together with $200 or more.
  3. Problem Solvers
    • pockets $50 for their own profit
    • reserves $100 for publishing your documents
    • uses the remaining money to post a bounty for a working solution
  4. For a minimal fee everybody can give money to Problem Solvers to add to an existing bounty.
  5. Problem Solvers invests the bounty money using a conservative strategy so that the bounty grows over time.
  6. The first one to show a (not necessarily new) solution that passes the test suite gets the bounty.

People will start to work on a solution when

  • the bounty is appropriate for the complexity of the problem
  • they would profit from the solution, but need some extra motivation
IBM Files Declarations and An Idea to Deal with Stupid Patent Tricks
Authored by: Anonymous on Wednesday, November 24 2004 @ 05:01 AM EST
My solution: Get rid of ALL patents on software. I'm with
RMS on this - they are just bad - period. They only exist
because greedy corporations "own" politicians. Nothing
more, nothing less, and if anyone else thinks differently
they're a fool.

Dave

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Dont even try to Deal with Stupid Patent Tricks
Authored by: L_Hurmala on Wednesday, November 24 2004 @ 08:13 AM EST
I a real world, there are unlimited solutions to a problem. But in a software
environment, you option are severly limited. So the basic idea to have the
software patented is flaved AND is much to restricive.

Cheers, Bill

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OT (slightly): fuzziness in legislation
Authored by: lordmhoram on Wednesday, November 24 2004 @ 09:20 AM EST
PJ:
"But no law can be so vague that it's impossible to know precisely when you
are breaking it."

Ooh, I don't know. You should see some of our British laws (particularly ones
passed by the current administration.)

A few years ago, I had cause to read up on the laws prohibiting harassment in
the UK. Protection from Harassment Act 1997 section 1 has this:

"A person must not pursue a course of conduct (a) which amounts to
harassment of another, and (b) which he knows or ought to know amounts to
harassment of the other."

This is - er - clarified by the following note:

"For the purposes of this section, the person whose course of conduct is in
question ought to know that it amounts to harassment of another if a reasonable
person in possession of the same information would think the course of conduct
amounted to harassment of the other."

I think that's just beautiful.

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Stupid Patent Tricks - Antitrust Liability Already Exists
Authored by: Anonymous on Wednesday, November 24 2004 @ 01:14 PM EST
Interestingly, a patent holder can already get sued for treble damages under the
US antitrust laws for trying to enforce a patent that has been fraudulently
obtained from the PTO. See Walker Process Equipment v. Food Machine & Chem
Corp., 382 US 172 (1965). In particular, the Federal Circuit has recently held
that intentionally failing to disclose prior art can constitute such fraud and
form a basis for liability. Nobelpharma AB v. Implant Innovations, 141 F.3d
1059.

However, if a patent application is just ignorant - i.e., no fraud - then a poor
job by the PTO results in the grant of a patent that should never have been
granted. Therefore, the real problem (at least in the US) is that the U.S. PTO
examination process is poor. Underlying this is the fact that the PTO does not
get to keep all of the fees it collects to improve the system - about 10% of the
revenue taken in by the PTO is kept by the Treasury and put ot other uses. A
decent article explaining the issue is at
http://www.govexec.com/dailyfed/1104/111704tdpm1.htm. Just this week, Congress
approved a new bill increasing the fees charged by the PTO, but failing to end
fee diversion.

This has gone unnoticed by Groklaw - as far as I can tell - but is part of the
real problem with the patent system - that bad patents are being granted that
subsequently allow the owner to spread FUD.

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Another Idea on How to Deal with Stupid Patent Tricks
Authored by: Jeetje on Wednesday, November 24 2004 @ 02:22 PM EST
I'd say the magic words for the current patent mess is actually quite simple:
peer review. The same way articles get accepted into scientific journals,
Groklaw deals with FUD or source code ends up being merged into the Linux kernel
base.

A patent will not be deemed valid until a group of peers (being a healthy mix of
scholars and engineers employed by business) has had their shot at showing prior
art. That way, the patent office employees don't have to be experts themselves
anymore. Their main task will be to single out the experts they'll have to round
up to serve as a group of peers.

Mind you, the names of the reviewing peers should be attached onto the patent,
so if prior art DOES show up in a lawsuit, it will be the scholars' reputation
on the line... Businesses will benefit as well, because it will be in their own
interest to show a case of prior art if they want to stop the patent from being
granted.

Methinks this is a clean way to stop the stream of obvious patents. And if the
load for scholars becomes to heavy: give some cases to students, they'll have a
blast shooting holes into patents!

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IBM Files Declarations and An Idea to Deal with Stupid Patent Tricks
Authored by: Anonymous on Thursday, November 25 2004 @ 08:19 AM EST
Assuming, for purposes of discussion, that Microsoft was able to collect a
royalty everytime the 'ISNOT' operator was used, it would be Microsoft being
enriched, not Mr. Vick, unless Microsoft has some program in place to share
royalties with employees. A lot of companies have a policy in place that all
patents developed by the employee are property of the company. Since Microsoft
is the owner of the patent, they should pay the damages, not Mr. Vick. Also
this would address the issue of the patent companies, those companies that go
around buying up patents from poor inventors who don't have the resources to
market their invention themselves, and who then go on to sue the world for the
use of the patent.

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