[openip] Re: "rights" and "freedoms"

Doug Hudson dthudson at concentric.net
Tue Oct 19 15:43:01 UTC 1999

> >> The number of trivial software patent applications should
> >> slow  drastically if a significant number of such
> >> applications were rejected.

No.  Actually, many firms will follow the lead of Microsoft, and get
hundreds of patents, which they form into "patent pools."  MS and others are
aware that a good percentage of these patents are unenforceable, but
nonetheless they still (1) cross-license their patent pools with the patent
pools of other [oligopic] big players, and (2) loom as a large threat to
small programmers/companies.  Even if the vast majority of a patent
portfolio is invalid, all that MS or another corp needs to destroy, say
Linux, would be one patent.  Then they could get a preliminary injunction
against distribution in the US, and go after Red Hat, Corel, IBM, etc.,
everyone who's invested in Linux companies for contributory infringement.

> >
> >Very good point! Knowing that someone is tracking your company's
> >move and knowing that people are sensitive to fight for their
> >freedom, has a big influence on the patent investment and I'm
> >sure the 'shadow-PTO' group will be widely known in a short time.

This I'm sure of.  I've talked to a number of IP lawyers, and
(unfortunately) will be one myself soon.  Just want to be one of the good

> >> I think that it's critically important that some
> >> effort be put into eliminating trivial software
> >> patents.

That's why I think the "patentbusters" idea will work, w/o being explicitly
"mean" to big corporations.

> IF
>     (a) the patents really are easy to prove as trivial,
> AND (b) each company has paid US$20K+ to bring the patent
>         to issuance,
>     it should be possible to create an organization that
>     generates revenue by writing to companies at the start
>     of their patent's 3 month public period saying that if
>     they don't pay US$5K immediately, then Patentbusters Inc
>     will throw all its resources into finding prior art to
>     bust their patent!

NO! No! No! This is not the idea of Patentbusters (at least not -my- idea of
patentbusters.)  Actually, I think the opposite will be true: many
corporations, even large ones like MS, would be willing to pay to have a
patent they feel threatened by posted anonymously to the site, to see what
prior art would pop up from the community.  Even large companies would
(sometimes) want to use such a service.  But charging someone -NOT- to
announce their patent would be, even if not illegal, simply incompatable
with the free (as in speech) flow of information.  I would consider it

>     This could kick off by starting with a US$50K fighting
>     fund and pick on a small number of patents and bust them.
>     The busted patents and the bust rate could be posted
>     to Patentbusters's website as trophys and to scare
>     future victims into coughing up.

Once again, no.  Future 'victims', as they realize they are threatened by
some patents out there, may actually submit patents to the site.  The point
is that the PTO isn't doing it's job, as it's old method of prior art
searching doesn't work in the software / e-commerce world.  This would work,
it's a free market solution and should make everybody happy (except for
"land grab" patentees who would lose the "threat" of suit as a lever to $$
settlements for questionable infringement suits.)

> The nice thing about this idea is that if the organization
> turns out to be viable, it could grow exponentially. As the
> growth occurs, the sum demanded can be increased too so that
> a substantial proportion of patent applicants opt not to pay.
> At this point the rich applicants would be funding the
> destruction of lots of little patents by the poorer applicants
> which is a positive outcome because it will have increased the
> cost of a trivial software patent. The organization could also
> point its guns at critical rich company patents of its choosing.

Rather than that, the "organization" wouldn't point its guns at anyone.  The
users chose which patents are nominated, the users post prior art, etc.  The
users are students, open source programmers, small startups, and big
corporations equally.  I've been thinking about this for a while...

> Would this idea actually be criminal under blackmail law or
> something? :-) I dunno. Doesn't seem to me to be any less
> blackmaily than running around asking random companies for
> patent royalties. :-)

A central site for people to comment on and contribute their own prior art
for software patents isn't criminal, nor is it practicing law.  I would
stay -far- away from asking corps to pay not to have their patent listed.
When bad guys go around asking random companies for patent royalties, they
can (instead of investing so much in a lawyer) first submit the patent to
this site, or see if it's already there, and then let the community do it's

> So in theory, anyone who develops an efficient software-patent
> busting workflow should go talk to a venture capitalist.

VC isn't necessary to start something like this up.  Really.  Ironically, it
is necesssary to secure IP rights though.

> :-)
> Ross.
> Dr Ross N. Williams (ross at rocksoft.com), +61 8 8232-6262 (fax-6264).
> Director, Rocksoft Pty Ltd, Adelaide, Australia: http://www.rocksoft.com/
> Protect your files with Veracity data integrity: http://www.veracity.com/

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