Posted by: Anonymous Coward
on September 17, 2006 03:59 AM
I am surprised and extremely disappointed that patent-litigation defendants have been left out of this discussion. Perhaps I am the only one who has been on the receiving end of a patent shakedown ring.
The key thing you need to understand about patent shakedowns is that that "shakers" have years in which to stare at code in preparation for the shakedown. In contrast, the "shakees" will have perhaps 30-60 days in which to either gather invalidating prior art or to prove that they do not infringe. If they fail to do so, they will likely be hit with a preliminary injunction that will shut them down, regardless of whether or not the "shakers" had a legitimate case. The "shakees" need all the help they can get -- and annotating prior art (including FOSS packages) can be extremely helpful to the "shakees".
Perhaps you just don't care about these "shakees". That would be your choice (a bad one in my opinion, but your choice). However, you most certainly should care about the fact that every successful patent shakedown puts more money in the "shakers" pockets. No doubt some of this money will be wasted on high living, but much of it will go into creating even more patents and into resisting badly needed patent reform -- for example, into resisting abolition of software patents. Preventing the patent shakedowns that are already happening all around us is clearly extremely important. Tagging prior art is one very good way of preventing patent shakedowns.
But what about the possibility that the identification of prior art will result in stronger and more dangerous patents? This danger is quite real. However, it is not immediate, since it takes years to create a new patent, years in which significant reform might be possible. In contrast, the very large number of low-quality or just plain invalid patents that exist today are already dangerous, and, as we have seen, that danger will be exploited to generate the money required to resist the reforms that are so badly needed.
So, yes, tagging FOSS prior art might well be dangerous. However, failing to do so will be even more dangerous, both immediately and in the longer term. In particular, failing to resist the ongoing "shakedowns" will make real reform, up to and including abolition of software patents, even more difficult. Let's all face up to the fact that the multi-hundred-million-dollar judgements and settlements we have seen can -- and will -- buy an incredible amount of resistance to patent reform. Sad, but very true nonetheless.
Finally, what of the danger that a partial solution will remove motivation for further reform? Each one of us can ask ourselves that question. And if you think that pervasive tagging of prior art would sap your motivation for further patent reform, then please, please, please rethink your priorities. On the other hand, if pervasive tagging would -not- sap your motivation, then there is no problem!!!
Paul E. McKenney (My personal opinions herein -- if you think I obtained approval to say these words on behalf of my employer, please let us all know what you are smoking!)
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Let us not forget patent-litigation defendants!!!
Posted by: Anonymous Coward on September 17, 2006 03:59 AMThe key thing you need to understand about patent shakedowns is that that "shakers" have years in which to stare at code in preparation for the shakedown. In contrast, the "shakees" will have perhaps 30-60 days in which to either gather invalidating prior art or to prove that they do not infringe. If they fail to do so, they will likely be hit with a preliminary injunction that will shut them down, regardless of whether or not the "shakers" had a legitimate case. The "shakees" need all the help they can get -- and annotating prior art (including FOSS packages) can be extremely helpful to the "shakees".
Perhaps you just don't care about these "shakees". That would be your choice (a bad one in my opinion, but your choice). However, you most certainly should care about the fact that every successful patent shakedown puts more money in the "shakers" pockets. No doubt some of this money will be wasted on high living, but much of it will go into creating even more patents and into resisting badly needed patent reform -- for example, into resisting abolition of software patents. Preventing the patent shakedowns that are already happening all around us is clearly extremely important. Tagging prior art is one very good way of preventing patent shakedowns.
But what about the possibility that the identification of prior art will result in stronger and more dangerous patents? This danger is quite real. However, it is not immediate, since it takes years to create a new patent, years in which significant reform might be possible. In contrast, the very large number of low-quality or just plain invalid patents that exist today are already dangerous, and, as we have seen, that danger will be exploited to generate the money required to resist the reforms that are so badly needed.
So, yes, tagging FOSS prior art might well be dangerous. However, failing to do so will be even more dangerous, both immediately and in the longer term. In particular, failing to resist the ongoing "shakedowns" will make real reform, up to and including abolition of software patents, even more difficult. Let's all face up to the fact that the multi-hundred-million-dollar judgements and settlements we have seen can -- and will -- buy an incredible amount of resistance to patent reform. Sad, but very true nonetheless.
Finally, what of the danger that a partial solution will remove motivation for further reform? Each one of us can ask ourselves that question. And if you think that pervasive tagging of prior art would sap your motivation for further patent reform, then please, please, please rethink your priorities. On the other hand, if pervasive tagging would -not- sap your motivation, then there is no problem!!!
Paul E. McKenney
(My personal opinions herein -- if you think I obtained approval to say these words on behalf of my employer, please let us all know what you are smoking!)
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