I think you are confusing your personal opinion about the matter with the
facts at the table.
If we take your example
Company A is
sued for patent infringement. If they are found liable the damages
are 100
millions. If on top of that the developers has read the patent the
damages is
300 millions. There is no way the increment in productivity is worth
200
millions.
...you are of course right the productivity is
not worth 200 millions...but your example is flawed in that you assume the
company take the information in the patent and does not negotiate a suitable sum
for getting a license to use the patent. A sum that would be much less than even
100 millions. I have read that patent awards are meant to be much higher than
the going rate of the patent or else you would end in a situation where it is
always beneficial to dodge paying until you are getting sued.
The
lawyers will ignore your example (and possibly discredit the main arguments)
because for someone with an assumption of patents being useful they will say you
build your argument on additional costs associated with you stealing the ip of
the patent and not paying what is rightly due to the patent owner.
The
rub is of course that software patents without disclosure of code are too vague
for you to say if you implement the same as the patent without that you sit down
and do the implementation of the patent yourself.
Treble damages is
about punishing companies that refuse to play it legal and steal the ideas from
other companies. In itself this is not a bad idea, but the concept does not work
if you can't tell if you infringe or not. Treble damages is a very real concern
at working floor of the software developing company because the cost to evaluate
if you infringe even a fraction of the patents in existence is greater that
developing the software from scratch.
You can't use the concept of
treble damages in itself as argument for patents not being cost/benefit
effective. You can of course build more arguments about how software companies
can not ever hope to get patent clearance from all patents due to the cost of
doing this and that one single failure to prove that you don't infring a certain
patent expose you treble damages, but that is a different argument than what you
put forward.
All in all I think the benefit of adding any kind of
addendum need to be carefully considered. Adding just part of the argument about
the matter expose you to loose credibility if the other side can make it look
like you missing important aspects of the matter. I am not speaking about the
other side proving you wrong (clearly that is impossible), but that it is
terribly hard to prove that all programmers agree with us and partial arguments
about how things are can easily be countered with arguments about it being more
complicated. Such situation might make the court less inclined to listen to the
addendum and in worst case even parts of the argument. Sticking to only answer
the very questions being asked might be the more wise strategy. If the argument
is good it does not need to be placed in an addendum...and if it is partial then
it weaken the credibility of your answer. [ Reply to This | Parent | # ]
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