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RE: Patent Spam (was Re: US Patent 6,687,897)

• To: 'David Megginson' <dmeggin@a...>, XML Developers List <xml-dev@l...>
• Subject: RE: Patent Spam (was Re: US Patent 6,687,897)
• From: "Bullard, Claude L (Len)" <clbullar@i...>
• Date: Fri, 13 Feb 2004 09:02:27 -0600

You are likely close to the mark.  I heard a radio 
program yesterday that said the patent office received 
over 2000 applications every morning.

But this patent is really well over the obvious mark. 
Maybe MS is making a point to the USPTO by demonstration. ;-'
 
I think you meant to say, there is nothing but a 
moral hazard, in other words, no downside except 
publicity, and a serious upside if granted.  

That isn't quite true.

One can lose these battles on very minor quibbles. 
See the recent announcement for Intel vs Intergraph. 
Even legitimate patents are very expensive to defend 
if someone with deeper pockets decides to fight them.
The game favors the deep pockets of the BigCos and 
they know it.  I deeply fear that as a political 
subject, it will become another third rail of politics: 
touch it and die.  That coupled to outsourcing will 
make resistance in some emerging economies futile.

OTOH...

I wonder how the software industry will 
feel if tough regulations are applied to their 
behavior, regulations that cut across proprietary 
and open source, recognize that software value is 
going to zero, force provisions on quality, 
safety, costs, partnership agreements, and 
on the self-selected consortia that gut international standards 
to create wholly owned and controlled specifications 
but with every specification, gut the rights of 
the companies to make claims against any patents 
in order to work in the processes that have 
abducted the normal international standards processes? 
 
IOW, what about regulations that turn 
the turtle over on its back to expose  
the soft underbelly of the software industry 
and cut in EVERY direction?  Not going to 
happen?  

Probably not but consider this:  American justice 
may be the best that money can buy but its 
not the cheapest.  For that reason, the cost 
of obtaining the patent is trivial compared to other 
costs and that is why it is often better to 
patent in other countries.

len


From: David Megginson [mailto:dmeggin@a...]

It seems unlikely that the staff at the USPTO can do more than give each 
application a cursory glance and make sure that all the required fields are 
filled in; it's up to the courts to figure out what the truth might be.

The problem right now is that there is a moral hazard to filing a bogus 
patent claim: you don't face any serious consequences if you lose, so why 
not take a chance?  In many ways, it's exactly analogous to spamming.  If a 
company could stand to lose millions (or more) because of a irresponsible 
patent, the system might work a little better.

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