RE: Another Microsoft XML patent
On Tue, 7 Jun 2005, Bullard, Claude L (Len) wrote: > Problem here is, Rick, that there wasn't that much > innovation. A lot of burglary and rebranding, but > not as much innovation as is claimed. I don't > disagree with your essential point that cooperation > is the better way, but if patents aren't filed, > under the current system, the small companies will > be muscled out of business. I didn't used to believe this, but now I'm persuaded, since the most influential proposals for "patent reform" supported by Microsoft  and other pro-SW-patent groups, as incorporated into the draft Patent Act of 2005 , call for abandoning the "first to invent" model and adopting a "first to file" rule. It's being done in the name of "international patent harmonization" (read: allowing large patent-holding companies to win with uniform ease in any jurisdiction). The "first to file" standard ensures that the number of patent applications will rise (maybe dramatically), that the USPTO will need ever more money, and that the big companies who perpetuate the existence of the pathological, dysfunctional patent system through the influence of the USPTO will retain control of the system -- which benefits them and disenfranchises smaller companies. In this context, the patent arms race is fueled, and that's exactly what the large companies want: they easily retain their monopolies through this system. A comical element in Bradford Smith's "patent reform" plan  is the cancellation of the current $500 patent filing fee for certain classes of small players: "We believe there should be a zero filing fee system for small inventors that qualify for the small business entity status under the PTO regulations today. If that type of zero filing fee system were put in place, it would provide a useful step for the small and start-up inventors that will continue to be such an important part of our economy." What a silly sop: by most estimates, including those published by the US government, the end-to-end cost of prosecuting a patent is about $13,000 USD, and sometimes as high as $30,000. Waive the "$500"? I guess that's meant to encourage more patent applications for patents that will never be used, so that companies now filing 35-40 patent applications per week will not stand out in such bold relief. If Len's observation about the need for individuals and small companies to file (like crazy!) for patents is correct, it's hardly a long-term solution. It exacerbates the acknowledged problem of the "patent thicket" in which nobody can know what's patented ("everything" already is) and nobody except the largest patent holders -- as a general rule -- can hope to "win" in a showdown. The sad thing is that many of the big players, if their employees are honest and bold enough to admit it, know this system of patent proliferation is pathological. See example statements from Cisco and Intel: Federal Trade Commission Patent Reform Workshop April 16, 2004 Bancroft Hotel, Berkeley, California http://www.law.berkeley.edu/institutes/bclt/patentreform/transcripts/BCLT_Patent_Transcripts.pdf 1) Robert Barr, [then] Vice President for Intellectual Property and Worldwide Patent Counsel for Cisco Systems in San Jose, California, where he is responsible for all patent prosecution, licensing and litigation. **... We stockpile patents... a vicious cycle of stockpiling of patents, mutually shared destruction** "So patents are a business. But, secondly, the reason we are in this situation is because those of us who are involved in the thicket contribute to it. We stockpile patents. We increase -- every time we find out that everybody else is increasing patents, we increase. So you have a vicious cycle of stockpiling of patents, mutually shared destruction. What is wrong with that? It is a drain on resources, money, engineering time that could better be used for innovation." 2) David M. Simon, the Director of Intellectual Property at the Intel Corporation where he manages all patent generation and analysis. His responsibilities include filing numerous patent applications on behalf of the corporation and directly supervising 80 employees "... it [the current patent system] causes us to file what I personally think is an inordinate number of patents, and every year my CEO says, 'Go get more,' to the point where my patent filing budget and prosecution budget is now more than half the size of our Corporate Research Lab's budget. That, to me, seems to be out of kilter. And, you know, obviously -- and by the way, that does not include litigation, that is a separate budget which is also roughly the same..." And Bill Gates is unmoved: "we think patents are patents"  Jaffe, on (sic!) reform: When issues of patent policy are considered by the courts, the Congress, and the Executive branch, you can be sure that the opinions of patent lawyers and patent holders will be heard. While their arguments will often be couched in terms of the public interest, at bottom their interest is in their own profits and livelihoods, not in designing a patent system that fosters the overall rate of innovation. Even the PTO itself cannot be expected to advocate necessary reform, if such reform reduces its revenues (by discouraging bogus applications) and threatens its established mode of operation. -- Adam B. Jaffe and Josh Lerner http://xml.coverpages.org/patents.html#Jaffe > > Why? > > The reason to fix the global patenting systems > is that they have become a means to extort. Yes. That's why the previous posting (mc) which laments a large number of lawsuits *against* large companies, while citing something documentable, is only a small part of the picture. Most of the extortion which goes on takes place OUTSIDE the courtroom. Witness the patent holdup (some will call it "patent terrorism") of the OMA by the MPEG cartel. Extortion can make use of the courts, but hardly ever does: it's simply based upon a distribution of power (monopoly) that makes threat a perfectly effective weapon.  > A > company with means to file patents can invade the > technical means of markets that they don't participate > in and use their size (yes, the bigCos do waaay > more damage than the little companies all hype > to the contrary) to hold the innovative companies > hostage. So the little companies with marketshare > MUST patent as fast as they can. Does that [expletive deleted]? > You betcha. Sad. It's going to get a lot worse before it gets better, apparently. > > The web made this worse. Email and other means to > send messages directly to desktops have made it > possible to get a thin patent, then use the medium > (including lists like this) to ensure knowledge of > the patent goes directly to the CIOs, CEOs and other > corporate officers who are then obligated to go > to their legal departments with the information. > > An interesting read is the history of the Wright > Brothers struggle to get their patents. Because > at that time patent applications meant one could not > demonstrate the invention, they had to face down > the whole country of France where it was claimed > powered flight was invented. They had to fight > Curtis who got an advanced look at the Wright Flyer > and ripped off their concepts for wing warping. > > So, having the web where we regularly discuss our > ideas is a pretty dangerous thing UNLESS one wants > to be open with ideas. Even then, anyone with > Google or a good spider can harvest these lists > daily and patent like mad. > > len > > > From: Rick Jelliffe [mailto:ricko@a...] > > Unfortunately, just because the USPTO is a laughing stock among > programmers does not mean that its influence is not strong elsewhere. > Venture capitalists still look to pupported IP when evaluating companies, > and researchers are frequently rated by how many patents they get. > > Looking at the major advances or sources of innovation in the last 15 > years, the WWW and XML in particular, they come out of co-operation and a > renunciation of the private ownership/control of infrastructure standards.  Microsoft's recipe for "patent reform" The Patent System and the New Economy Invitational Event American Enterprise Institute for Public Policy Research Thursday, March 10, 2005 Main presentation by Bradford L. Smith Video available ( 00:00:00 ) Christopher DeMuth ( 00:06:33 ) Bradford L. Smith ( 00:36:26 ) Q. Todd Dickinson ( 00:49:47 ) John F. Duffy ( 01:00:22 ) James DeLong ( 01:11:14 ) Andre Carter ( 01:22:27 ) Panel Discussion ( 01:31:02 ) Question and Answer http://www.aei.org/events/filter.,eventID.1026/transcript.asp http://www.aei.org/events/eventID.1026/event_detail.asp http://www.aei.org/events/contentID.20050308133855710/default.asp http://www.aei.org/events/eventID.1026/event_detail.asp#  Patent Act of 2005 http://promotetheprogress.com/ptpfiles/patentreform/houseoversight/committeeprint.pdf  http://www.microsoft.com/msft/speech/FY04/GatesFAM2004.mspx  http://xml.coverpages.org/patents.html#Reback Excerpt: <q>[...] Threatening a massive lawsuit, IBM demanded a meeting to present its claims. Fourteen IBM lawyers and their assistants, all clad in the requisite dark blue suits, crowded into the largest conference room Sun had. The chief blue suit orchestrated the presentation of the seven patents IBM claimed were infringed, the most prominent of which was IBM's notorious "fat lines" patent: To turn a thin line on a computer screen into a broad line, you go up and down an equal distance from the ends of the thin line and then connect the four points. You probably learned this technique for turning a line into a rectangle in seventh-grade geometry, and, doubtless, you believe it was devised by Euclid or some such 3,000-year-old thinker. Not according to the examiners of the USPTO, who awarded IBM a patent on the process. After IBM's presentation, our turn came. As the Big Blue crew looked on (without a flicker of emotion), my colleagues -- all of whom had both engineering and law degrees -- took to the whiteboard with markers, methodically illustrating, dissecting, and demolishing IBM's claims. We used phrases like: "You must be kidding," and "You ought to be ashamed." But the IBM team showed no emotion, save outright indifference. Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun's technology infringed even that one. An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. "OK," he said, "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?" After a modest bit of negotiation, Sun cut IBM a check, and the blue suits went to the next company on their hit list. </q> > > ----------------------------------------------------------------- > The xml-dev list is sponsored by XML.org <http://www.xml.org>, an > initiative of OASIS <http://www.oasis-open.org> > > The list archives are at http://lists.xml.org/archives/xml-dev/ > > To subscribe or unsubscribe from this list use the subscription > manager: <http://www.oasis-open.org/mlmanage/index.php> > > --
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