Potential patent issues

[Russel Winder]

On Sat, 2011-01-22 at 15:54 -0500, Jean Crystof wrote:
> Nick Sabalausky Wrote:
> 
> > I've been under the impression that, as a rule, the USPTO doesn't check for 
> > prior art and deliberately leaves "invalid due to prior art" up to the 
> > courts.
> 
> That's how it works. The patent threat is always there. Someone can
> patent delegates, classes, and whatever language feature whenever they
> want. In the courts if Walter is much poorer than the competitor, he
> can't win. The SCO case was a great example. They didn't own the Unix
> rights and couldn't find any patent infringing code. Nevertheless, the
> Microsoft money kept them fighting. If Apple or Microsoft wants to
> compete with Walter, he simply can't win.

Isn't this why the US system of software patents is wrong?

"Big Money" keeps insisting that the whole patent system is designed to
allow people who have inventions but not the resources to exploit them,
a route to obtaining remuneration by allowing others to do the
exploitation.  This has always been a specious argument.  Even if it
were not, and whatever the original use of letters patent that led to
the patent system, this system, especially in the USA, has turned into a
business tool for "Big Money" to ensure control of all exploitation is
handled by "Big Money".  To preserve power in the hands of "Big Money"
the patent system has been evolved into a game that only "Big Money" can
play, small players are systematically excluded.  (Of course, lawyers
are the only real winners as they get paid win or lose.)

Where the invention is something that can only be exploited by there
being something physical that must be manufactured, then there are
arguments that patents are a useful tool.  Where the invention is a
business process or a software technique (or a user interface
technique?) then I don't see that it serves any purpose other than
preservation of control by "Big Money" over innovation.  The exact
opposite of the avowed purpose of patents.  

I have yet to see how business processes, algorithms, and programming
techniques are anything other than ideas or mathematics, and ideas and
mathematics are supposed to be not patentable.  As far as I am aware the
UK Patent Office still does not issue software patents, though the EU
Patent Office, seems to have started to try, under pressure from "Big
Money" I suspect.  (I agree it is easy to blame US companies and ignore
the fact that European and Asian companies are part of the cartel when
Microsoft, IBM, HP, etc. are the easy names to roll off the tongue, so
"Big Money" here does not mean large US corporate.)

Sadly, the Anti-Counterfeiting Trade Agreement (ACTA -- cf.
http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement)
appears to have been somewhat hijacked by US "Big Money" via the US
Trade Representative (USTR -- cf. http://www.ustr.gov/) as a tool for
imposing the US way of patents onto the rest of the world (*).  This
means software patents will have to be granted everywhere that ACTA
applies.  No matter how much lobbying the FLOSS community do, I bet "Big
Money" will not fail to sieze the opportunity to ram through the whole
"software techniques are not ideas, they are patentable" philosophy.

Perhaps then the only defence these days, especially in the USA, and
sadly if ACTA is signed into place, the rest of the world, is to be a
signatory to the Open Invention Network (OIN -- cf.
http://www.openinventionnetwork.com/). However appealing though, even
this is just a tool for "Big Money" since only by having significant
resources can you actually patent something that you can then
magnanimously donate to the OIN patent pool -- have you noticed that
"Big Money" is very selective about which patents get donated and which
don't?

So it seems the only hope for small players to do any innovation, indeed
any work, in the software arena, is to be ignorable by "Big Money", i.e.
do stuff that doesn't matter or doesn't constitute a threat to "Big
Money".  Either that or the policitians of the world spontaneously see
the light, that they are being herded by "Big Money", and disallow
software patents forever.

All in all though it seems the days of the small independent software
development organization doing anything innovative are strictly limited.

(*) You might want to follow Simon Phipps (Wild Webmink) on this
http://webmink.com/2010/03/19/acta-roundup/

-- 
Russel.
=============================================================================
Dr Russel Winder      t: +44 20 7585 2200   voip: sip:russel.winder at ekiga.net
41 Buckmaster Road    m: +44 7770 465 077   xmpp: russel at russel.org.uk
London SW11 1EN, UK   w: www.russel.org.uk  skype: russel_winder
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