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Patents, enforcement, onus

Started by February 25, 2009 11:21 AM
3 comments, last by chairthrower 16 years ago
My question(s) are very practically minded and directed at the value of holdings patents. Do large organizations that produce software make any attempts to actively avoid patent infringement - I am thinking of things such as code review and actively searching patent databases? Is there any onus on organizations to avoid such breaches, and if so, do organizations have policy statements on this issue? If a patent holder suspects their rights are not respected in a specific case, then presumably there exists some mechanism to force discovery of software code. But how about a case of a patent with broad application and where a patent holder is not in a position to have any idea who might be in breach ? In short is there any commercial value in obtaining patent rights in an example like this.
A patent allows you to:

  • Advertise your method as being patented. Sometimes, having a patented method means it's good enough to actually be worth the investment.

  • Provide legal grounds for lawsuits against infringement. This does not help you identify who is infringing (you'd usually scan for competitors, then study the competitors' algorithms for similarities), willingly or unwillingly.

  • Provide legal means for licensing an algorithm to third parties while protecting yourself.


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Regarding the first question, my (admittedly basic) understanding is that developers are highly discouraged from searching patent databases, on grounds that willful patent infringement is much more costly than accidental infringement.

Hopefully, though, software and business method patents are on their way out, with the In re Bilski decision as precedent. If I may step up on my soapbox for a moment, patents were originally created to encourage innovation. They were awarded to very specific and physical inventions. At some point, however, we began to patent ideas. Here is a good physical example that I've come across: imagine the company that invented the spring-loaded mousetrap. Instead of patenting that specific implementation of a mousetrap, they instead are awarded a patent for "a method of trapping small mammals," or some such equally vague, but more obfuscated legal-speak description that would be used nowadays. Now instead of encouraging innovation, like creating the more effective glue traps or more humane live traps, it stifles innovation because nobody can invent anything that performs the same task without either infringing on the company's patent and facing litigation or paying the company royalties to use their information.

Now consider that all software programs are just methods of performing tasks on a computer. That is, there are virtually an infinite number of ways to do the exact same thing. Note that software copyright and licensing still protect that specific implementation, but software patents should go the way of the dodo.
Games are not patentable but they are registered as intellectual property. Patents are for novel ideas. US allows registration of business ideas. Patents are supposed to be truly novel, they cannot be plain modifications.Another clause states that there should be a physical model or some practical application for the patent. A patent cannot be bogus as a perpetual machine which for example consume no energy to produce work.
ToohrVyk,
So, patent protection is commercially useful if the key ideas are sufficiently focused that you could business around them. Patents then become one means of protecting one's own competitive advantage (maybe along with keeping things secret). The idea of advertising is an interesting one. Patents provide for strict legal notice, but trying to sell an invention under license (I am trying to think of an analogy - perhaps consulting) with the patent in the background as legal protection is interesting.

lmelior
Thanks, that confirms my understanding as to whether organizations take steps to clarify the status of their own Ip. I suspect we are probably in agreement as to value of patents generally to society. My observation is that they seem to be acquired defensively, for their deterrent value in discouraging disputes and promotion of cross-licensing agreements between dominant competitors. It is probably also the case that novel invention is an everyday matter. For example, spend a year trying to solve an issue in a specific area and you are likely to come up with a better approach. The academic publishing system seems altogether better, where the reward for being first to publish is recognition and status, and other benefits accrue indirectly (academic tenure etc). The thing about standing on the shoulders of others also comes to mind.

SaurabhTorne
I am broadly aware of what might be patentable. In my mind I was thinking about algorithms like marching cubes or the Microsoft's new hardware shader based bezier subdivision stuff. These have wide-ranging potential commercial application, but if it was the case that a small organization or even an individual had developed them, then would patent protection/licensing be of value given their general nature, and given the difficulty of finding out who might be using the algorithms? What about a slightly less novel/well known algorithm.

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