Of un-patents and un-inventions
David Webber (XML)
david at drrw.info
Mon Mar 14 13:52:05 UTC 2005
Reflecting on this some more and reviewing the previous efforts -
I believe this is all about focus.
The problem is that there are two worlds colliding:
1) World #1 - old way - "innovator" creates new technology,
files patents, seeks venture capital and investors, takes
proprietary solution to market. Attempt to "own"
marketplace and lock in customers. Market pressures
lead to refinement of product over time. Traditional
distribution channels owned by large corporations
that lock out small players anyway.
2) World #2 - new way - collaborative communities working
on common problems creating software solutions that
are public, peer reviewed and refined. Companies
market solutions and services around those in an open
marketplace based on local value. Internet is enabling
everyone to gain rapid access to the latest solutions.
The USPTO is geared up to serve #1 - but the problem is
that #1 is a liability and a dinosaur that should be consigned
to history. All it is doing is continue to foster bad solutions
that customers should not be buying. The more enlightened
are actually requiring that solutions are based on open public
Now - in order to promote those open specifications that
have been collectively developed - we need means to
create a trust that the ideas enshrined in them are not
owned in part or whole - by some corporation or individual.
It seems to me that creating an un-patent has several uses:
1) it re-assures the collaborative community that there is not
some hidden IPR agenda going on.
2) it formalizes that the ideas themselves are not patentable
since they are obvious and self-evident - making a
declaration to that effect makes it harder for the PTO to
say they are.
3) it creates the realization that 99.9% of what is going on in
software today is not inventing at all - it is applying what is
already known. (When you buy a box of Lego - you
do not apply for patents on every model or device you
create with it!)
This I believe is fundamentally different from what IP.com
and others have tried in the past. If enough of this stuff is
labelled as self-evident and obvious by the community itself,
then the PTO is going to have a hard time arguing otherwise.
Essentially our livelihood and skills have been hijacked
by a bunch of PTO examiners and patent attourneys in
an unholy alliance using an outdated, inapplicable and
archane process - and its time we took it back.
----- Original Message -----
From: "Gregory Aharonian" <srctran at world.std.com>
To: <license-discuss at opensource.org>; "David Webber (XML)" <david at drrw.info>
Sent: Monday, March 14, 2005 5:17 AM
Subject: Re: Of un-patents and un-inventions
> David Webber suggests:
> >It suddenly occurred to me - that creating un-patents and un-inventing
> >is entirely possible - and indeed we could create a review board
> >and repository to receive these. These would be a powerful antidote
> >to any possible future claims - and also make nice references for
> >the license to cite the un-invention and un-patent and un-claims.
> Actually, it would probably have very little effect, for two reasons.
> First, what you propose is already being offered by a few Web sites,
> with no effect on the operations of patent offices. Second, all
> patent offices have major problems dealing with large databases of
> abstracts to publications on software. There are more effective ways
> to help patent offices deal with the logistics of handling non-patent
> prior art during examination. Hopefully someday they will solicit
> such ideas. Achieving higher quality software patents (still the best
> tool for small companies) is not that difficult technologically or
> financially, just apparently politically.
> Greg Aharonian
> Internet Patent News Service
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