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[ox-en] Patents...





On Sun, 26 May 2002, Timm Murray wrote:

On Sunday 26 May 2002 14:16, Stefan Merten wrote:
<>
However, what is actually the bad thing about such a patent? Isn't the
meaning of such a patent more or less reduced to a enforced need to
name the originator of the idea? I'm really wondering.

Perhaps, but if my knowledge of IP law, you don't need a patent to do that.


  The critical problem, and it originates out of the damaged US Patent
Office, is a problem with statutory filing.  It should be possible (and
free) to file "prior art" to make patent searches easier and to give
credit to ideas where it is due, but without having to pay legal or other
fees to do so.


(Of course, I am not a lawyer. I don't know how applicable this is to 
international IP law.  And there is the whole problem of Theory vs. 
Practice.)


  Many of the problems with patents are of the "theory vs. practice"  
problem.  I suspect that Business Model and Software patents would simply
never have been allowed anywhere if adequate testing was being done on
patents in general.

  I have yet to see an example of a business model or software patent that
adequately passed all of the required tests:  useful, novel and unobvious.  
Most that I have seen are obvious even to someone lesser-skilled in most
computing areas than those who should be testing the patents.


useful - should not be "people will want to buy this", but that society
    would gain by the knowledge being publicly published as part of the 
    patent rather than being kept secret.  For many patents, society would 
    be better off it we waited a short time until someone else "invented" 
    it.


novel  - much more work needs to be done on statutory filing and patent 
    searches.  Part of the problem here is that patent examiners are not 
    paid for the quality of their work, but the number of patents they
    pass.  They have a monetary incentive to be incompetent.

unobvious - this again requires very intelligent people to be involved in 
    the patent process.  At the moment this is clearly not the case given 
    the number of idiotic patents in the system.


  Some basic assumptions must be dealt with - it must be understood that
it is more harmful to allow a single invalid patent to pass than 10 valid
patents to be denied.  In both cases the patent can be brought to the
courts and further examination made, but the court system should be used
by companies wanting to prove worthiness to be granted a monopoly (by
definition, economic damage), not by society trying to prove invalidity.


---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
 See http://weblog.flora.ca/ for announcements, activities, and opinions
 I will be speaking on Tuesday May 28 - see http://www.flora.ca/osss2002/
 "Open Source Solutions Showcase" week - hosted by GTIS, PWGSC


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