Date: Wed, 20 Jul 2005 13:23:23 -0700 From: "David Schwartz" <davids@webmaster.com> To: <fullermd@over-yonder.net> Cc: freebsd-chat@freebsd.org Subject: RE: Software patents and FreeBSD Message-ID: <MDEHLPKNGKAHNMBLJOLKKECGFFAB.davids@webmaster.com> In-Reply-To: <20050719170036.GF84047@over-yonder.net>
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> On Mon, Jul 18, 2005 at 11:25:23PM -0700 I heard the voice of > David Schwartz, and lo! it spake thus: > > If there was no patent system, the same effect would be achieved by > > contracts and EULAs. The net effect would be the same as with > > patents, except that the terms would not be limited by law and there > > would not be as much public disclosure. > No, there would be one important difference; the burden of proof would > be correct. If you wanted sanctions against me, you'd have to > demonstrate that I stole the idea from you. The standard of proof in civil cases is simply a preponderance of the evidence. Establishing that an idea is not obvious is evidence that two people didn't develop it independently. So given that the idea is not obvious and the person saying you stole it developed it first, the burden of proof would be on you to establish that you didn't. If you can refute his claim to non-obviousness or first development, you'd win against a patent anyway. Essentially, the test would be exactly the same. The only difference would be if you somehow had strong evidence that you developed it independently. It's hard to image what that could be. Against this miniscule benefit would be two huge losses: 1) What is and is not protected would be not be clearly defined in documents that become public. Scope of protection would likely be *larger*, especially if the person protecting has more money than the suspected infringer. 2) The terms would not be limited to 20 years for non-obvious ideas that become so well known that it's essentially impossible to develop them independently. What would almost definitely happen in just such a case is a fix for these problems similar to the patent system we have now. The huge benefit to the public of guaranteed limited terms, public disclosure, absence of need for millions of non-disclosure agreements, and defined precise scope of protection hugely outweigh the small price that if two people really do independently develop the same non-obvious idea within 20 years, only the one who developed it first can use it for the remaining time. DS
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