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Re: The patent process [Was Re: Sharing the Family PC is Patent-Pending]

From: Alun
Subject: Re: The patent process [Was Re: Sharing the Family PC is Patent-Pending]
Date: 11 May 2004 15:26:09 GMT
User-agent: Xnews/4.11.09

Stefaan A Eeckels <> wrote in">

> On Mon, 10 May 2004 21:29:40 -0700
> AES/newspost <> wrote:
>> It only *takes away* rights from *others* that these others 
>> would have had, had the patent not been granted (including in particular
>> their rights to use, make, sell, or exploit the same invention should 
>> they themselves independently make exactly the same invention). 
> Actually, it takes away the rights of others to copy
> the invention and use, sell or exploit it without
> inventing it. In other words, make it far less attractive
> for an original mind to invest in inventing and perfecting
> inventions. 
> While one can argue the fairness of the patent process
> when it comes to different people having the same idea,
> and perfecting the same "device" independently, there
> is no doubt in my mind that making it possible to recoup
> investments (after all, not all inventions become commercial
> successes, so there still is a significant risk) is a good
> thing. No-one wants to invest in bringing a new product to
> the market to have it ripped off the moment it is a success.
> The problems with software patents are:
> 1. There is no need to construct a prototype and
>    perfect the device - most software patents concern
>    rather trivial ideas, that take little time to code
>    and don't require code, as the language of the
>    patent is about as far from a computer language as
>    possible. This reduces the value of the "disclosure"
>    to zero.

I would have no problem with the idea of requiring source code, but the law 
would have to be changed. Present legal standards don't require it.

> 2. The patent examiners aren't software professionals,
>    and the patent verbiage makes it very difficult
>    for software professionals to understand the purported
>    invention. As a result, almost anything can be 
>    patented.

I don't think the conclusions follow from the premises in that. I think 
most of us who are patent professionals agree that the reason that bad 
software patents issue is that the examiners mostly look at existing 
patents for prior art. Since software wasn't always patentable, it is a 
given that most really basic ideas won't be found in their search, and so 
they are then compelled to allow the patent.
> 3. We're no longer dealing with individual inventors or
>    small companies with limited resources, but with huge
>    corporations that can afford frivolous litigation as
>    a means of crushing emerging competition.

Right. One of the things that ought to be done to combat that is to remove 
the presumption of validity of issued patents, and the FTC have recommended 
> 4. As said above, the value of the disclosure is not 
>    related to the advantages granted by the patent. Software
>    patents should require the submission of working code, i.e.
>    a complete, working system clearly demonstrating the 
>    invention. The archaic and ridiculous language in which
>    patents are cast should be abolished, as it offers too
>    much power to patent attorneys, and makes it impossible
>    for skilled programmers to understand the claims.

I don't see how a plain language requirement would work. Patents are 
written from scratch, and those of us who write them use certain terms and 
certain ways of writing things for legal precision, not to confuse others, 
beleive it or not.
> The patent system should not merely have been extended to
> software, but revamped to take into account the specifics
> of software. A naive idea, obviously, as it doesn't suit the
> interests of those who leech off the system (government, patent
> professionals, litigation departments of large corporates).
> Take care,

It would suit me just fine to have special rules for software, but we 
don't, so I have to work with what we have.

Alun Palmer, US Patent Agent

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