RE: Lawyers want to gut our tools

Subject: RE: Lawyers want to gut our tools
From: david -dot- locke -at- amd -dot- com
To: "TECHWR-L" <techwr-l -at- lists -dot- raycomm -dot- com>
Date: Sun, 21 Oct 2001 17:33:35 -0500

The problem with software patents is that they are new. So what happens is that prior art gets patented and then somebody tries to enforce it. Then, a lawsuit happens. Then, if the defense succeeds in showing that the patent was built on prior art, the patent is thrown out.

If there were a sufficient number of patent examiners to handle all the software patents that have been filed since the Supreme Court made patents on software and business processes possible, there would be less court cases. Going forward, as more and more prior art is getting patented, there will be less basis for this kind of legal defense. The patent examiners will catch more and more of these kinds of claims, but they have to catch up to prior art first.

In addition, a patent isn't like a copyright. It is the number of legal claims and successful defenses that make a patent valuable. A patent grants the ability to the holder to get sued. It is the patent attorney's responsibility to build a defensible set of claims. That's why the first step in a patent application is a patent search. A patent search will delineate the defensible space of the intended patent. Additional patent applications can make the patent space larger and reduce the likelihood of successful claims by others attacking the patent.

Lawsuits are an ordinary part of the patent process.

That said, patents on stuff like Amazon's one-click, or the electronic bookstore, or the electronic encyclopedia drive me crazy. Where are brain cells? Oh, it was the one that thought, maybe we should patent this. The lesson here is in recognizing intellectual property. We create it everyday. We hardly noticed. But, under the law, every little thing is patentable, and until every little thing is patented, these kinds of patents on ordinary and thoughtless stuff are going to be filed.

A chemist would never make this kind of mistake. They know that if they create a molecule that has never been created before, it needs to be patented. They will have a patent before they even know what they can do with the molecule. But, chemistry is an industry that has patented all their prior art and has a good base to build on and make decisions about patentability.


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