05.30.09

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Patents Roundup: IBM/Dojo, Patent Punishments, and Europe’s Race to Community(-Hostile) Patent

Posted in Europe, Free/Libre Software, IBM, Law, Patents at 5:12 am by Dr. Roy Schestowitz

Dojo: Leave IBM Patents Alone

THE other day we wrote about IBM and Dojo, based on what Slashdot had published. It turns out that Slashdot was wrong and the Dojo community actually appreciates rather than worries about what IBM did.

It’s sad that Slashdot hasn’t, for a decade of coverage of IP issues, learned that licensing is harder than the zealots would have you believe and that malice isn’t always the intent of those who participate in communities with a commercial interest.

The good news here, of course, is that IBM is just as generous today toward the OSS and Dojo communities as they were yesterday. We have the legal documents to prove it.

Solutions That Won’t Work

Steve Lake makes a proposition which he thinks would solve the conundrum of intellectual monopolies.

Another Simple Way to End the Patent Threat: Monetary Punishment and Rewards

This is a simple, yet novel way to end the patent threat to Linux, FOSS and generally anyone that the big corporations want to destroy or mess with. If you look at the patent fee schedule at the USPTO, you’ll see that it’s outrageously expensive to file a patent. This isn’t a problem for the big guys with the big fat bankrolls, but it’s bad for the little guy. For those too lazy to look at the link, the list essentially creates a picture of how badly you get nickeled and dimed to death every time you file a patent.

Interestingly enough, this can be used to the advantage of FOSS and Linux lovers the world over.

[...]

The fine would work something like this. First, the entire fine would be paid to the USPTO upon invalidation of the patent (Total fine should be the cost of the original application +50% extra), of which 5% would go to whoever successfully invalidated the patent, be it an examiner or an individual. In short, if you invalidated a patent that cost a company $100,000 to get approved, the total fine would be $150,000, of which you’d get $7500 for your efforts. (this same fee system could be applied to the first fine as well) Think of it this way, if they start offering bounties like this on invalidated patents, we would see two things. First, we’d see the death of one kind of patent troll, and the rise of another. Namely, a reverse patent troll. And who would these reverse patent trolls be?

There is an assumption here that patent holders deliberately obtain invalid patents, but the matter of fact is that even at Microsoft, employees are actively encouraged not to explore and study prior art, or else the legal consequences would be more severe. In other words, there is a lot of duplication out there because it’s actively encouraged, but to fine for the practice would prove difficult, especially when the fined party is small and impoverished. If the patent system was created to incentivise invention and novelty, then it has lost sight of this purpose, but penalties are hardly the answer. Criminalisation rarely solves much, unlike prevention.

Europe Under Patent Siege

Digital Majority has found a couple of articles that serve as an update and warning about the EPO's lip services to Microsoft and its ilk.

From the Financial Times: Reform of Europe’s patent system moves a step closer

Changes to Europe’s costly and fragmented patent system have edged a step closer after EU industry ministers agreed formally to ask the European Court of Justice for its opinion on a potential overhaul.

Ministers, meeting in Brussels yesterday, said they would consult Europe’s top court on the legality under EU law of introducing specialist courts to handle patent disputes along with a so-called “community patent”.

The latter – which would be a single intellectual property right that would apply across Europe – has been an elusive goal for decades.

From the Guardian: EU states consult top court on patent litigation

European Union states agreed on Thursday to ask the bloc’s top court whether draft plans to cut the cost of defending patents in a new system of courts would be compatible with EU law.

Suddenly they mind EU law?

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”

Marshall Phelps, Microsoft

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