Not crypto, but this list has moved out onto IPR issues before, so..

[Julian T. J. Midgley]

On Thu, 3 May 2001, Owen Lewis wrote:

>> The lesson to be learnt from the USA would appear to be that
>> software patents are prone to abuse, are rarely adequately
>> understood/researched by those granting them, are consequently
>> granted even when they ought to have been declared invalid and
>> serve /only/ to redistribute wealth in the direction of the
>> lawyers.  They stifle innovation, place small companies at the
>> mercy of corporate behemoths, and, so far as I can tell, have no
>> useful place in society.

> Yes, patenting is an expensive process and not for the faint hearted. It is
> also the surest way for an inventor reap a reward for his risk,
> inventiveness and time. Be very sure that if one, solely or corporately,
> spends years creating and proving a unique and valuable process most others
> will implement that process for their own benefit and without thought of
> rewarding the inventor.

This is only true if we trust the patent system (and therefore the patent
office) to be careful when granting patents.  Now, in the USA, it is
standard practice to accept practically any application for a software
patent unless it is obviously invalid.  It would appear that it is rare
for checks for prior art, etc., to be completed before the patent is
granted.  The result is that the decision about a patent's validity only
occurs in the court room, at the expense of the protoganists (and to the
satisfaction of the lawyers).  It is often cheaper (and more feasible) for
a small company to licence an invalid patent that it is for it challenge
it in the courts.  This is a long way from being ideal.

Now, if careful checks are conducted on every patent prior to its being
issued, then this problem diminishes significantly.  The problem is that
the potential volume of software patents is great, so it seems likely
either that the patent applications will be improperly checked, or that
patents will take far too long to be granted.  I am not even certain that
the European Patent Offices will be able to employ a sufficient number of
adequately knowledgeable people to accurately determine the validity of a
patent prior to its being granted.


> In regard to your last sentence, it is an inversion of both the purpose of
> patent law and, in my experience as a patentee, of the truth. Patent law
> gives the small man/business a protection that enables him compete with
> giants. I was about to write here that it is as was David's sling. More
> closely. it's akin to Sam'l Colt's Equaliser.

The problem the small company has is that the large company can afford to
file more patents, and more quickly.  It is well known that large
companies in the states patent everything they possibly can, not so that
they can extract royalties for their use, but so that they can threaten
other companies with their patent portfolio if the other companies are so
foolish as to demand royalties from the big guys.  "Ah, so you would like
to claim royalties on your procedure foo?  Well, it seems that you are
infringing our patents on methods bar, widget, bar2, foobar7 and fnord.
Perhaps it would be better if we all just forgot about this little matter
of patents?"

> Ob Crypto:
> 	Has patent law inhibited either invention or exploitation of cryptographic
> processes? I don't think so.

What about the RSA patent - practically all open source software that uses
the patented algorithm was written in Europe, since the US Patent Laws
don't apply over here.  Now if we enforced Software Patents as well...

(And of course, there is substantial evidence that the RSA patent is
invalid, yet none of the court cases brought against it succeeded in
having it overturned...)


Julian

-- 
Julian T. J. Midgley			http://www.xenoclast.org
Cambridge, England.                       PGP Key ID: 0xBCC7863F