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Curtis Veit
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First, for those who have said that a rebuttal is needed to keep the site balanced: Those that are for software patents have spoken from their pulpits already, this seems to me to be rebuttal for those numerous efforts. Second, for those on both sides of the issue: How many of you have done patent searches to find related patents to your research and development? I have and what I found when doing this was shocking to me. My background: Electrical/Electronics and Software Engineer. Working at an aerospace firm in R&D for production equipment and processes. Shock #1: I found many patents with mechanical and hydraulic ideas patented that where obvious to me based on a basic understanding of physics and engineering. These items were outside my core disciplines. Conclusion: The Patent Office does a lousy job of vetting for uniqueness and prior art. Based on the idea of a practitioner being someone that is well versed in the art, perhaps a Phd level person, it seems apparent that the PTO has few people at this level to ensure that we are not closing off access to basic engineering ideas as taught in school though the current patent process. The current process needs a substantial overhaul. Shock #2: A cursory search for a handful of the software concepts that we felt had some possibility of patentability took me longer than the time it took to write and test those sections of the software. Note this was only the preliminary search for possible related patents. It did not include any significant analysis of existing patent claims as related to our development. Conclusion: A real patent search and analysis to ensure our software did not infringe any ones patents would take a minimum of ten times the actual development time. (Some of our engineers thought it could be much higher.) This was in the early 1990s when there were relatively few software patents. We decided to have a policy of not reviewing any software patents. What you need to ask yourself is if software customers are willing to pay ten times as much to provide for their software needs. Will software companies be able to afford development and marketing to the reduced customer base that an environment such as this will produce. A comparison for those of you that practice law: The practice of engineering in a patent rich environment can be compared to a legal system that requires a new, unique legal argument in each new case. What if a legal argument after having been used once was then unavailable for your use. Accidentally using an argument that was used in a case you were unfamiliar with results in an automatic loss in the case. "Ah, but we allow licensing of patents", you say. Fine, what if every argument you use that has been used before requires you to find the originator and obtain a license. How many arguments and motions are in a typical case. What if the originator refuses to license the argument to you. How would this affect the practice of law. (Makes patents seem a little less desirable doesn't it.) In the case of large software projects there can be from thousands to tens of thousands of unique small concepts used. The cost of ensuring that you have a non-infringing products is mind-numbing. (There are many solid arguments as to why software should fall under the auspices of copyright rather than patents that have been covered elsewhere.) Given the rule that the purpose of patents is to encourage innovation and progress in the various arts I would have to say that a factual examination of the real cost of ensuring a software product is unencumbered by patents will show that no software company can actually compete and innovate if they are footing the bill for the necessary patent examination costs. Thus the case for allowing software patents should fail as it cannot encourage progress in the art. Others have covered in detail how software companies deal with patents today. Basically the strategy is to never read patents as it will increase the damages. They chose to develop software as though there is no such thing as a software patent. Then later if sued they deal with it at that point. Note that as the number of software patents increases this approach becomes less tenable.
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