Subject: Re: Subdomain Patent Sparks Concerns

From: Dean Anderson <[email-masked]>
Date: Fri, 2 Apr 2004 10:42:10 -0500 (EST)

<LPF President Hat>

The article wasn't quite accurate:

"Business method patents that cover software programs weren't legal until 
a few years ago," Dicig says, "so there is no comprehensive way for the 
PTO to search for software and computer-related technology that's already 
been invented, other than that described in patents and published 
applications. For instance, if the patent office didn't know about 
WordPerfect 1, it could issue a patent on word processing because it has 
no way to know that word processing was already invented."

While finding prior art is hard problem in any field, it would be helpful
if the Patent Office hired more experts in the fields that they offer
patents in, and in particular, more computer scientists.  The patent
office is supposed to have staff that is familiar with the field. I.e., it
is __supposed__ to have someone who would reasonably know about
WordPerfect 1.  The (or rather *a*) problem is, they don't.

Such patents as this are clearly mistakes, and are frequently overturned
on review. There is a process for handling such mistakes, and they can be
fixed later, so really, the PTO bears only a certain amount of criticism
for granting such obvious patents.  These mistakes don't really bother me
too much.

What concerns me more is the genuinely inventive and novel ideas that are
either out there now that we may already be using but haven't yet paid
for. or the ones waiting in the future.  Its not the crazy patents that
are the problem. Its the good ones.  Waiting like time bombs for the
patent office to issue a patent, 18 months after filing (if expedited). A
lot can happen in 18 months, especially if you file right before product
release, and that product catches on. 18 months is a long time for
software. 30 months, and you are into lifecycle maturity. You've already
made commitments to using the software.  Now you have to pay whatever they
want to charge.  If the patent is solid, there is no way out, not even for 
OJ or MJ, or BG for that matter.

Patents cost money to obtain, a lot of money to protect, and usually an
only "decently good" idea will be thought of by many people in various
equivalent but dissimilar forms, who will all cross license, perhaps after
spending much money on lawyers, which means that neither the inventors nor
the investors (VC) obtain the monopoly on which they based their valuation
and investment decisions.  In other words, its lose/lose for everyone
except the patent lawyers.

It gets worse: the idea of the patent office was to create a repository of
knowledge for the benefit of the public (to promote progress) after the
patent had expired.  But any halfway decent patent lawyer will advise
engineers and inventors against searching Patent Office records, because
doing so might later be evidence of an intentional violation of patent
rights:  
	"Did you see this patent? 
	Umm, I might have. I don't know. I don't remember. 
	But you were looking for this type of information?
	Umm. Yes. That was the point. To see what others had done.
	So it seems certain then that this patent was in the group you 
        searched. 
	Like I said, I don't know. It could have been.
	Ladies and gentlemen: I say he DID see that patent. I say there is
        almost no way that it could have been missed.  Not only does he 
        admit looking for, essentially, just this patent, but he
        intentionally violated the patent rights of my client, and stole
        the idea my client patented after years of painstaking work, 
        excruciating pain, painful neckbraces... oh wait, wrong case.

So, if you are an engineer, you never look at that patent database.  Its
never used unless you are a lawyer or being sued, or helping the LPF find
prior art to fight some obvious or previously invented invention.

So, basically, the patent office just has a big pile of records that only
lawyers and bureaucats can use.  And perhaps, historians.  And terrorists.
But its a lot of effort for history.

And while 20 years might be a small fraction of the lifetime of a
machinery design, say for a transmission on a tractor, it is a glacial eon
for software.  It takes years to make a profit on a machinery design.  It
takes months to make money on software.  The same powershift transmission
invented by John Deere in the 60's is still used in tractors today, 40
years later. That's typical with machinery.  But very few software
programs are still in use 20 years after introduction, and fewer still 40
or 60 years later.

Oh wait. I forgot one thing:  It gets worse sometime in the next few years
when we change from first-to-invent to first-to-file in compliance with
our obligations under the GATT treaty. You forgot about GATT didn't you?  
Well Congress hasn't.  Its been passing legislation in bits and pieces
getting ready for the first-to-file change.  I'm not certain when the real
kicker comes up for a vote, but it will be in the next few years, I think.

So, in case you missed consequences of first-to-file, it means that no
matter who invents something, nor how much prior art there is, the first
one to reach the patent office with a properly filled out application gets
the patent and all the rights and benefits there-to. Ok, this overstates
things just a little. Very little, but a bit.  Thankfully, our Congress
has passed a grandfather clause, so that the _Original_ inventor cannot be
denied the _USE_ of his invention, after proving of course, that he or she 
is the genuine true inventor.  

But you can just forget about publishing prior art and freeware, and
assuming that what's free now stays free.  Of course, I presume the PTO
will follow is usual rules about denying obvious patents, so if it was
invented a _long_ time ago, then it probably won't be patentable. So its
not going to be like anyone can run down to the patent office and patent
the idea of, say, subdomains just because no one did yet.  But anything
halfway novel, and new. Well, that is another story:  Patent it or someone
else will.

Alright, probably more than you wanted know.

</LPF President Hat>

		--Dean

On Tue, 30 Mar 2004, Einar Stefferud wrote:

> Article from the Web Host Industry Review:
> http://thewhir.com/features/subdomain.cfm
> 
>

---

From: Dean Anderson <[email-masked]>
Date: Fri, 2 Apr 2004 10:42:10 -0500 (EST)

<LPF President Hat>

</LPF President Hat>

		--Dean