Date: Fri, 12 Sep 2003 18:33:57 -0700 (PDT) From: Dan Strick <strick@covad.net> To: FreeBSD-Chat@FreeBSD.org Cc: dan@ice.nodomain Subject: Re: Software patents Message-ID: <200309130133.h8D1XvFs000450@ice.nodomain>
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>>> > >>> > > But if any algorithm used in bsd will be patented in europe and > > the patent became valid, they may have a problem either. > >>> > > If such a patent were issued in Europe then it would be invalid > specifically due to the prior art in BSD. >>> Such a patent would still have to be challenged in patent court with the vast burden of proof falling on the challenger, no matter how obvious the matter might seem to us. This process is very expensive and there is always the possibility that a stupid or biased judge will make a wrong decision. The patent system could cause immense damage to society by granting patents for inventions that are trivial or part of unwritten "prior art." >>> > I fail to understand how an invention implemented in software is any > less worthy of protection than any other machine. >>> It is not, but there is a legal history behind the software patent controversy. U.S. patent law says that ideas are not patentable. Only inventions can be patented. Until a few years ago, the patent office held that software, like a mathematical technique, was an idea and not an invention. To work around this, software inventions used to be described in hardware terms. For example, the famous Unix setuid bit patent gives the strong impression that the feature was implemented with hardware logic gates on a circuit board. I wonder if it got through the system only because the patent examiner had great respect for Bell Labs research and even greater respect for Western Electric lawyers. When the patent office changed its policy towards software, it was only natural that the controversy would arise over the change in policy rather than the intractable real problem, that patents are often granted for trivial inventions. Patent examiners seem to have a rather low standard of innovation, perhaps because they are not experts in the fields for which they grant patents. One of the common arguments against granting software patents is that patent examiners have accumulated little experience in the field. Patent examiners also grant patents for inventions that are silly or cannot possibly work, such as perpetual motion machines. Perhaps patent examiners feel that granting patents for foolish or impossible inventions does no harm and that arguing with patent lawyers is a waste of time. Standard procedure when applying for a patent is to make excessive claims that a patent lawyer can trade away in order to secure the real claims. The validity or worthiness of a claim may have little to do with whether or not it is granted. There are serious problems inside the patent system, but I can't think of any way to fix them. Dan Strick strick@covad.net
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