software patents
From: Vlad Simionescu (vsimionescu_at_softwin.ro)
Date: 10/31/04
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Date: 30 Oct 2004 21:33:58 -0700
Hello
As many may know, software patents are a hot issue today, everybody
talks about how evil they are and how they harm the programming
industry and that they should be banned altogether. The main issue
being that there are a lot of trivial ones granted such as the famous
one-click purchase patent. But then, once you try to understand things
a little, you find out that thing are not that obvious.
First question that comes to mind, why do they grant them ? The answer
seems to be that it's cheaper not to look very carefully for prior art
and non-obviousness and grant it anyway, since it brings money to the
patent office. Then the patent can be challenged in court and there is
where the real decision is made.
So to me, this means that the initial patent grant is not worth very
much. So I have a few questions to which I couldn't find an answer:
1. Why isn't the patent office accountable for the errors it makes ? I
mean, if I pay it money and it grants me a patent which then doesn't
stand in court, I would expect it to pay me the money back plus say
50% bonus as material damages. Plus it should also pay those who won
the case in court against me, for their effort to find prior art for
instance, or for their better judgement that the idea is obvious. I
would say that since they actually made the right decision about the
invalidity of the given patent, which the office wasn't able to make
correctly on its own, a fee of 2 - 4 times the initial patent granting
fee would be appropriate, maybe even more.
Wouldn't this make it difficult to do patent blackmail, i.e. obtain a
trivial patent then threaten firms with legal action requesting
smaller royalties than the trial fees would be, as I understand there
is a practice today ?
2. Wouldn't it be good to have a registering system, where the
inventor could submit the details of the invention for a very modest
fee (something like 100$ at most) ? It would imply absolutely no
verification on behalf of the system, just registering. It would serve
to establish one's priority on the idea. Sometimes it may be difficult
or even impossible for somebody to write an article in order to do
this. Of course, the patent would then have to be granted the regular
way, and if prior art was found then it wouldn't be granted.
3. Finally, is the famous and infamous one-click purchase pattern one
that shouldn't be granted because of obviousness ? If so, how come it
stood in court and others have to circumvent it ?
Just some thoughts. Maybe my questions are silly, I don't have any
legal training, but I have thought about these matters for some time
now and I feel it's time to discuss them with others who may be
willing to share their ideas (without asking for royalties for it (;)
).
V. Simionescu
programmer
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