More to the point, patent law is one of the only two areas of law where you
are guilty until you can prove yourself innocent. The other is tax law.
Yes, I could have simply published the work. That establishes prior art.
However, let us consider this very real (I have experienced it) scenario.
1. I invent something. It is generally useful, yet I don't think I'll get
rich on the idea.
2. I publish the invention, to put a stake in the ground, hoping to put the
invention into the commons.
3. Someone else, without knowledge of my publication, invents something
similar, or the same, and patents the invention.
4. That someone else sues people over my invention.
5. I am now facing US$ 250,000 minimum, US$ 1,000,000 typical, in legal fees
to invalidate the patent issued in step 3.
6. I would win the case, because I have the prior art. However, I am not
stupid, so I begrudgingly pay $40,000 for the privilege of using my own
invention and not paying tons of legal fees.
This is why I call it inoculation. US$ 12,000 in legal and filing fees
today has a 20x - 80x return on investment protection.
Is the system stupid? Unquestionably. Is it the system? Yes.
On 10/30/07 2:52 AM, "Dean Anderson" <dean(_at_)av8(_dot_)com> wrote:
[I am rather getting tired of 100+ email addresses in the to: field.
Pine also doesn't allow reply-all to the bcc: field. I'm thinking of
creating a new list of everyone that posts to the IETF list. Thoughts?]
On Mon, 29 Oct 2007, Lawrence Rosen wrote:
Eric Burger wrote:
I specifically applied for patents underlying the technology behind
RFC 4722/RFC 5022 and RFC 4730 specifically to prevent third
parties, who are not part of the IETF process, from extracting
royalties from someone who implements MSCML or KPML.
That was a waste of your time and money. Publication of those
inventions by you, at zero cost to you and others, would have been
sufficient to prevent someone else from trying to patent them. Next
time, get good advice from a patent lawyer on how to achieve your
goals without paying for a patent.
This was true only in the U.S., and will not be true once the senate
passes the first-to-file legislation that recently passed the house.
Once first-to-file is put into effect, everyone has to race to the
patent office. It doesn't matter who invented what. However, years ago
legislation passed that grandfather'd the original inventor; the
original inventor can't be charged fees. However, the original inventor
can't change the royalty structure imposed by the first filer.
For those here who keep asking for protection against patents in
standards, there is no more effective technique than through a revised
IPR policy that prohibits patent-encumbered standards from gaining the
IETF brand in the first place.
This sounds like a good idea at first. However, the LPF has long
promoted protective patents:
http://lpf.ai.mit.edu/Patents/mutual-def.html
It would be a bad idea to prohibit all patents in standards.
In a first-to-invent regime, the law still favors one with a patent,
since it gives one a cross-licensing opportunity to settle a dispute
with a similar, infringed patent, even if one uses their patent only
protectively.
In a first-to-file regime, protective patents are absolutely necessary.
The U.S. is treaty-bound (GATT) to implement first-to-file patent law.
The House recently passed this legislation, and I think it is expected
to pass the Senate, but the Senate hasn't yet voted.
I'm a little uneasy about changing the IETF patent policy. First, the
current policy has exactly the right idea: consider the patent and its
license, and make a smart decision. If one follows the rules honestly,
the rules are just right.
Second, the people most in favor of changing it are the very ones who
silenced me, and who are generally pro-patent. They were the same ones
who said that RFC 3979 wasn't the policy of the IETF. When we look
closely at the proposed document, it has ambiguities (already noticed by
others) that don't distinguish free-as-in-beer from free-as-in-freedom.
The only thing I might recommend changing about the present policy is to
add a definite mandatory penalty for deceiving the IETF.
I think we need more honesty and accountability in the leadership of the
IETF before we make such changes.
--Dean
Dean Anderson
President of the League for Programming Freedom
--
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