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Talk:Publishing information is made dangerous

Revision as of 15:15, 2 December 2010 by Jose X (talk | contribs) (Not even close: no justice at all!)

Evidence that burden of proof is unjust (useful for i4i/Microsoft case)

I suppose a patent has not been awarded in the x264 event, but if the USPTO does not look at open source, does this not suggest it can be very easy (since there is so much open source and things they don't look at) to get bogus patents (see the comment here by a presumed USPTO employee http://opensource.com/law/10/11/software-too-abstract-be-patented#comment-2807 ) to be enforced many years later against innocent parties and lead to likely success of the effort because of very high costs required to manage the burden of proof then placed on the defendants?

If so, this supports that a great problem exists with patents by nature (particularly perhaps with so much software having been developed) since, unlike with copyright, you aren't making the statement that X is violated but rather that no such X exists (which can be arbitrarily difficult to prove even when such X exist).

And I think this is an argument useful for the i4i/Microsoft case (recently accepted by the SCOTUS): that all parties have too high of a burden of proof automatically by stepping into the court room as defendants no matter that the patent was awarded. [This problem is known and probably has been covered various times in briefs, but the x264 case could be tangible evidence.]

The recent Red Hat victory (at $3 million cost to Red Hat for the successful defense) is another useful example of how the huge burden on defendants leads to a lack of justice. Jose X 03:19, 2 December 2010 (EST)

I want to use this argument for the i4i case, but I see one difficulty. The argument is that it's too difficult for examiners to find prior art. If that's true, then we should see a lot of patents being granted (by examiners with limited time) but then subsequently thrown out when they get to court (because the accused and their lawyers have more time and probably more knowledge of the software packages that exist in their domain). Is that what's happening? If so, we just need to prove it. If not, then it looks like the argument is flawed. Ciaran 07:45, 2 December 2010 (EST)
Red Hat... had virtual desktop patent ejected, but at a cost of $3 million and *with* help from the open source community. Do you think most companies or individuals will succeed? That troll went all the way even when it looked like the patents might get tossed. Is it justice that a person has to spend anywhere near $3 million to possibly win a case or else lose everything along the way? Of course not. Justice is if with minimal expenditures, the case gets tossed with summary judgment because the plaintiff did not provide enough evidence aside from the patent. Now, I don't know what evidence needs to be provided to be enough. This is why I stated that the patent game is broken from the get go (vs. copyright). At a minimum, the fair resolution would be to let small businesses off the hook or limit patents much more significantly.
Simply, you can't know what prior art exists in its totality. The Salin essay was arguing this in 1991 for software even before the Internet, Linux, and FOSS took off. Just imagine now. The argument is simple, there are hundreds of millions of lines of code for FOSS. That is all prior art and no examiner can cover that. I even gave a link to one patent examiner that stated very directly that he doesn't really even try. It's not law to try, and he stated the problems with searching for patent ideas (vs. for copyrighted text). At this point in time this system is unsolvable. If we allow software patents, regardless of other reasons not to, then we are putting defendants into the shoes of Red Hat once the technology is old enough.
Repeating.. even with access to FOSS, you would also have to study all of it to see if ideas of patents were implemented or suggested by the code or comments (in contrast to copyright). So it's not about doing a search, but about reading it all and studying each piece in relation to each patent [VCs have stated that patents come from out of the blue even after you search on the actual USPTO site, never mind the issue of searching for prior art in general.]
Let's not forget that Microsoft is one of the **wealthiest companies on the planet**.. and they are crying about a related issue of burden of proof costs. And a bunch of other companies much much wealthier than you or I are also crying. Now, let's ask again, is it fair to Ciaran's small company if a determined troll comes around? What are Ciaran's options? What if Ciaran thinks he found 3 cases of prior art (at I think Red Hat did). Ciaran really believes the patents are not valid and even shows the troll and the court the evidence. His reward: a $3 million debit to the bank account if he goes through to the conclusion through appeals. Imagine now if you think you might not be so lucky to already know prior art! How many man-years will it take to cover all the open source out there and all other prior art (much of which may have effectively disappeared or been closed source.. an issue related to Microsoft's complaint). In fact, it's not the lines of code that exist today in final shipping software. You'd have to dig through all lines of code lying inside version control systems (just for the open source cases). What is that, a billion today? And in 10-20 years when today's patents start getting used (eg, if they get issued in 5-10 years), the FOSS haystack will be much larger. .. Oh, and from a legal perspective, it might not even count as prior art! Yet as shown here, people can certainly take these FOSS devs ideas to get the patent. No justice!! Not even close.Jose X 14:15, 2 December 2010 (EST)