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| Authored by: PolR on Saturday, February 02 2013 @ 04:25 PM EST |
> ...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.
There is no such assumption.
The assumption is the company is not able to identify all the patents that may
apply to its product, get sued and lost. This is a commonplace scenario.
> 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.
Exactly. This is the assumption of my example. How do software company mitigate
the risk of being found liable for willful infringement? The common practice is
not look at the patents. There is no willful infringement on a patent the
developers don't know it exists.
> 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.
You seem to have the wrong idea on the argument we are making. The argument
being put forward is summed up in the first two sentences of the addendum.
> The USPTO should pay attention to how patent disclosure
> is actually used by developers. This should help the
> USPTO understand to what extent the practical
> consequences of patent law match how it should work
> according to theory.
It is repeated in a different form in the last paragraph.
> In conclusion, the USPTO should pay attention to how
> disclosure actually works in practice and compare this
> information with how case law says it should work. The
> ability of the patent system to actually promote
> innovation depends on it.
Treble damages is part of what developers must consider when using disclosure.
This is why the point is relevant and must be mentioned.
We are not arguing in front of a court. We are not trying to prove a conclusion.
We are not trying to overrule case law. We are responding to a USPTO request for
comments under the assumption that they are aware there is a problem with
software patents. We assume that they seek information that will help them
understand what are the issues and how to solve them.
We are not making legal arguments here. We are not lawyers. Legal arguments is
not our skill. They ask for feedback from developers. We are giving them that.
They may choose to use it as they see fit in their efforts to improve things.
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