From: Glenn Parker <glenn.parker@...>
Date: 2005-01-22T11:35:17+09:00
Subject: Re: [OT] Open Source Licenses against Software Patents

Bill Kelly wrote:
> From: "Thursday" <nospam@nospam.nospam.nospam.nospam.org>
> 
>>Bad patents, ones that should not have been issued, have virtually no 
>>chance of winning in court.  Their only worth is to anti-patent 
>>activists to showcase as examples but in court, they'd become 
>>invalidated if challenged.
> 
> Really?  Ever tried it?

Indeed, the cost of defending oneself in a patent lawsuit is, on 
average, $2-4mm.  In addition, companies that challenge software patents 
in the U.S. face a very difficult choice.  They can hire lawyers and go 
to court, but the price of losing a challenge is dire because they have 
proven themselves to be an infringing party, leaving them at a distinct 
legal disadvantage.  Some organizations are stepping in to persue 
independent challenges of some well-known patents, avoiding the legal 
jeopardy that potential infringers face, but their efforts are limited 
to attacking only the most outrageous claims.

Regarding the challenge of naming something good resulting from software 
patent law, I can only state my understanding of the *intended* goals of 
the U.S. patent office.  Those were to encourage investment in research 
and to facilitate the broad sharing of the results for the benefit of 
industry.  In the case of software, this has not been the result. 
Software companies have needed no government incentive to explore 
advances in software.  And software patents have most frequently been 
used to restrict the use of knowledge and to suppress competition and 
innovation.

Whether U.S. patent law could be modified to achieve the desired results 
is an interesting, but purely hypothetical question.  The "facts on the 
ground" are too serious to ignore.  If anybody is not familiar with the 
ten most egregious U.S. software patents, here is a list:

     * One-click online shopping (U.S. Patent No. 5,960,411.)
     * Online shopping carts (U.S. Patent No. 5,715,314.)
     * The hyperlink (U.S. Patent No. 4,873,662.)
     * Video streaming (U.S. Patent No. 5,132,992.)
     * Internationalizing domain names (U.S. Patent No. 6,182,148.)
     * Pop-up windows (U.S. Patent No. 6,389,458.)
     * Targeted banner ads (U.S. Patent No. 6,026,368.)
     * Paying with a credit card online (U.S. Patent No. 6,289,319.)
     * Framed browsing; (U.S. Patent Nos. 5,933,841 & 6,442,574.) and
     * Affiliate linking (U.S. Patent No. 6,029,141.)

Sources: http://www.eff.org/patent/ and http://www/pubpat.org/

Everybody reading this list (in the U.S.) has likely infringed on one or 
more of these patents.  When the patent lawyers come knocking at your 
door, they won't be interested in philosophical arguments about how 
patents should be used for the good of mankind.

-- 
Glenn Parker | glenn.parker-AT-comcast.net | <http://www.tetrafoil.com/>