Begin forwarded message:
From: Kent Quirk <[EMAIL PROTECTED]>
Date: December 1, 2006 12:23:30 AM EST
To: [EMAIL PROTECTED]
Subject: Re: [IP] more on Wi-Fi standards face patent threat
Dave:
It's not a matter of software engineers being too stupid or ill-
informed to respect patents. It's that it's literally impossible to
do our jobs while attempting to comply with the current patent regime.
First of all, responsible legal departments at software companies
tell their engineers NOT to read patents. If you get sued for patent
infringement and you are shown to have known about the patent in
advance, even if you thought you had designed around it, you're
liable for treble damages. If you *didn't* know about it, it's simple
damages. It's better not to know.
Secondly, software engineering is a special process. In product
development in the mechanical world, the product is typically
designed by assembling existing parts purchased from suppliers.
Individual parts may be patented, but it's generally presumed that
the part suppliers have resolved any patent issues and have the
rights to distribute the parts. The number of original "inventions"
in the creation of a new mechanical product is typically numbered in
the single digits.
In software engineering, every "part" is created from scratch. I
wrote a couple of hundred lines of code today. Every line was
original, but I could probably identify a couple of dozen engineering
problems I solved in the process. Each of those lines of code may be
subject to a patent somewhere. Even if I wanted to search for them,
there's no reasonable way to do so. A relatively small commercial
application, written entirely from scratch using a couple of hundred
thousand lines of code, could potentially infringe (and probably
does) on tens of thousands of patents.
Given the same design constraints on a big problem, ten engineers
would probably produce ten very different designs. But given the same
design constraints on a little problem, ten skilled software
engineers might only produce two or three unique solutions. Suppose
one of them patents one of these solutions. Now I have something like
a 1 in 3 chance that when I come across the same design problem that
I'll end up infringing a patent.
If it's that easy to infringe, it seems to me that the solution was
obvious to a skilled practitioner. Yet we see patent after patent
being granted on just such obvious inventions. A perfect example is
this week's controversial patent on using multiple linked lists
within a collection of data items.
The scale of "invention" in the software industry is so wildly
different from the way it works in other fields that the patent
system as currently defined is completely broken. We have no other
choice as software engineers than to ignore the patent system
entirely while doing design work, and hope that we're not crushed
under it when it falls down. We have to let lawyers and big companies
fight it out with the trolls and opportunists.
Bruce Perens wrote a good document on the problems with software
patents as they relate to standards. But it applies to software
patents in general. You can find it here:
http://perens.com/Articles/PatentFarming.html
Kent
David Farber wrote:
Begin forwarded message:
From: Milan Merhar <[EMAIL PROTECTED]>
Date: November 30, 2006 11:19:31 AM EST
To: [EMAIL PROTECTED]
Subject: Re: [IP] more on Wi-Fi standards face patent threat
Dave,
Although I sympathize with Mr Margolin's frustration, Mr Paulsen's
words are exactly the same advice I've heard from several legal
advisers, and he shouldn't have to shoulder the blame for reporting
it. After all, their job is to steer their client away from risk,
and the potential for assignment of multiple damages from
intentional infringement is indeed an avoidable risk in their minds.
Unfortunately, the benefit of more informed engineers building new
inventions upon the teachings of issued patents is not one that law
counsel can quantify, thus making it difficult for their clients to
strike an appropriate balance in the way I think all of us would
prefer to see.
- milan
On 11/30/06, David Farber <[EMAIL PROTECTED]> wrote:
Begin forwarded message:
From: George Margolin <[EMAIL PROTECTED]>
Date: November 29, 2006 11:02:19 PM EST
To: [EMAIL PROTECTED]
Cc: "'Ronald J Riley'" <[EMAIL PROTECTED]>
Subject: RE: [IP] more on Wi-Fi standards face patent threat
Reply-To: [EMAIL PROTECTED]
Dave -- if Mr. Poulsen actually IS a "Senior Engineer and Partner at
a Start
Up company" -- I would STRONGLY recommend NOT investing in that
company
because he is like a blindfolded man lighting matches in a firecracker
factory.
So please let us know the name of his company so that we don't
accidentally
invest in it. It will surely be doomed -- in fact -- Kaboomed!
Poor Mr. Poulsen is Wrong about the purpose of the American Patent
System.
He is knowledge less about how it works, why it exists and how and why
America has become and has remained (at least until now) the
technological
leader of the world. And he is more than cavalier about NOT reading
and the
NOT knowing when his company will be in trouble by blindly STEALING
the
creative and patented creations of other who ARE playing by the rules
and
disclosing and TEACHING their technology so that others may learn and
build
upon it.
George Margolin
Vice President
Professional Inventors Alliance
-----Original Message-----
From: David Farber [mailto:[EMAIL PROTECTED]
Sent: Wednesday, November 29, 2006 10:09 AM
To: [email protected]
Subject: [IP] more on Wi-Fi standards face patent threat
Begin forwarded message:
From: Lars Poulsen < [EMAIL PROTECTED]>
Date: November 29, 2006 12:16:10 PM EST
To: [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Re: [IP] and [Dewayne-Net] Wi-Fi standards face patent threat
>> Patents ... have become so not what the founding fathers had in
mind
>> when they hardwired them into the constitution.
Indeed. As a senior engineer (partner in a start-up company) it is in
my best interest NOT to read any patents related to my field.
If I read patents and learn anything in the process, I am obligated
to try to negotiate a license for using what I learned. Since the
owner of the patent is likely to be a competitor, it is likely that
he will be unwilling to grant a license on terms that are acceptable
to me.
If I DON'T read the patents, and independently come up with the same
techniques, I have a pretty good defense of obviousness. And if I
keep my circuit designs and source code as trade secrets, who is to
know that I achieved the same features by the same mechanisms anyway?
So much for patents "promoting innovation in the arts and sciences".
/ Lars Poulsen
Afar Communications Inc
--
------------------------------------------------------------
Kent Quirk I'm making a game about global warming.
Game Architect Track the progress at:
CogniToy http://www.cognitoy.com/meltingpoint
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