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

[Owen Lewis]

-----Original Message-----
From: ukcrypto-admin@chiark.greenend.org.uk
[mailto:ukcrypto-admin@chiark.greenend.org.uk]On Behalf Of Julian T. J.
Midgley
Sent: 03 May 2001 15:19
To: ukcrypto@chiark.greenend.org.uk
Subject: RE: Not crypto, but this list has moved out onto IPR issues
before,so..

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.

That is not my experience of the US process. Granted that one swallow does
not make a summer, it is also the common experience of the patent attorneys
I deal with. With my application (a document of only some 70 pages and 36
claims), proof of inventiveness had to be clear and not assumed. The prior
art search was global and brought to light documents in more than one
country. The process resulted in the loss of one claim from the application
and the redrafting of several others. I am not sure what your information
source may be but, with coalface experience, my view is that it is not the
pushover you describe it to be.

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.

That's not quite the way I understand things to be. Firstly, it is for a
patentee to apply to the courts for a judgement upholding his patent and not
for some other party to apply to the courts to strike the patent down.
Secondly, whilst you are right that it takes a court decision to validate
some or all of the claims in a patent, what is wrong with that? It is
essentially similar to the manner in which all property disputes may be
finally resolved.

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.

I believe that the checks are careful, which is not to say that they are or
can be perfect. Which is why the courts will finally decide on any specific.
The process has the following parts:
a. There is a preliminary trawl for prior art by the national office at
which filing is first made of an outline application.
b. If filing is permitted, the applicant has 12 months in which to do
further research, find funds, develop a detailed application and in variants
for each jurisdiction lodge the detailed application in each of the
jurisdictions in which he wishes to be granted a patent.
c. The patent office in each of those jurisdictions will examine the
application before it according to its own rules and law, without reference
to whatever may or may not be happening in any other jurisdiction.
Therefore, any application that will cover the main world markets is
examined by several expert and independent processes.
d. If relevant prior art is discovered by the applicant or any patent
office, then the applicant must revise and/or diminish his claims (or
withdraw hurt). Moreover he is under an obligation to inform each and every
office examining his application of any and all discovery. Failure to do so
would be fatal.

> 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.

True. But without the patent process, the small business would have no
effective protection at all.
Fashion it thus. Crudely, there are two sorts of inventive ideas. The first
is of a straightforward nature where the purpose and value of the invention
is immediately apparent to anyone shown it and which is then easily copied
without any breach of copyright (e.g. the wheel); any such invention must be
patented if the inventor wishes profit from his invention (not always the
case). The second sort of invention is one that can be demonstrated time and
again or placed into the hands of others for their use without other being
able to deduce and therefore implement for themselves how the invention
works. For inventions in the second category, the inventor may face less
risk through maintaining this method as a trade secret rather than by
publication of the method in a patent application.

Essentially, business is about risk management. One makes decisions and then
must live with their consequences.
Yes, the patenting system is not perfect and it is expensive. It is for each
inventor to assess whether or not iit is in his overall interest to use it.

 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?"

You take the popular swipe at 'big business'. May I say that my experience
of trading with major corporates is that they are - or try to be -
punctilious in their dealings with small business. The same cannot be said
for trading with small businesses, where standards are not so uniformly
high.

> 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...

You do not address the question nor make a clear point. RSA has been
exploited commercially on a global scale. It is also in substantial
circulation in freeware applications.  The patent did not prevent its
widespread adoption and use. The patentees (also the DH patentees) were
largely crippled in establishing an effective monopoly on their inventions
by the US export controls - but that's another story and nowt to do with
value of patenting.

Owen