On Tue, 2012-06-19 at 01:36 -0300, Ricky Clarkson wrote: > I think it's best to stick to the facts. One is that if you develop > virtually any piece of software there's probably a patent out there > that you're violating, and you cannot always tell which one it is in > advance in order to arrange licencing.
And remember, lack of knowledge is no defence. You can violate a patent without knowing it unless you sift through all currently active patents. > This only really matters when you get big enough to be noticed, of > course, but having that risk over a startup's head seems a bad idea. > > A couple of solutions: > > 1. Better filtering at the US Patent Office. I shouldn't be able to > patent a device I haven't built a prototype for and have demonstrable > unique market research for. The patent should not stand if after a > year there is no product on the market selling in reasonable numbers. The USPTO appears to do no research on patents. If the documentation is well formed then the patent is granted. At least in the UK there are searches done for prior art, and assessments of "obviousness" by referees. The difference is emphasis. The UK IPO wants patents to be strong and to stand up to scrutiny. The USPTO delegates that to the courts. Both a workable systems in principle, but the USA system is more open to being "gamed". I agree a prototype would be a good requirement. I am not sure proving a market should be a requirement. After all who would have predicted non-stick pans from building space rockets. Markets need to be left as emergent properties. > 2. A certified legal service that conducts patent searches, limiting > future claims of patent violation and hopefully reducing actual > violation. I.e., if you invent a device that allows you to smell the > words you're typing, get a certified patent search done, and then > SmellOKeys, Inc. come along and say they have a prior patent the > damages would be limited to $10,000 or 1% of your revenue, whichever > is larger. The suing company would be able to claim a limited amount > against the state, which would give the state incentive to keep its > certified vendors honest. But isn't this what the patent offices are supposed to be doing already. Certainly the UK IPO operates more along these lines. The USPTO is just a filing service not a vetting service. I suspect that the patent lawyers in the USA are a more powerful lobby than those in the UK with respect to government policy and the pragmatics of operation of their patent filing body. In the UK the government body is responsible for significant checks for validity as well as well-formedness. In the USA the courts are where validity is determined. -- Russel. ============================================================================= Dr Russel Winder t: +44 20 7585 2200 voip: sip:[email protected] 41 Buckmaster Road m: +44 7770 465 077 xmpp: [email protected] London SW11 1EN, UK w: www.russel.org.uk skype: russel_winder
signature.asc
Description: This is a digitally signed message part
