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An Insider's View of Software Patents
An anonymous reader writes "Ross Gittins at the Sydney Morning Herald has published an interesting insider view of software patents. This kind of thing is starting to be a hot issue down here with the US-Australia Free Trade deal about to be ratified and bring our intellectual property laws in line with Micros^D^D^D^D^D^D^D America's."
Er, it's control-H (^M) not control-D (^D) that erases. Control-D is eof. Get outa your GUI!
Remember, due to the concept of sovereign immunity you can't sue the government unless they say you can.
(Unless, you sue for injunctive relief claiming that the action is unConsitutional, and, after Eldred, I won't hold your breath there.)
Reading about the abuses of patents really makes my blood boil, but at the same time it is comforting to know that economists are starting to react against software patents.
The economic papers (and probably many others) " Sequential Innovation, Patents, and Imitation" and " An Empirical Look at Software Patents" articulate in economic terms why software patents don't work.
I think that most economists believe that monopolies are bad and competition is good. I think that the more the economic viewpoint like those mentioned in the papers above start to have stronger acceptance amongst economists, then these viewpoints will start to hit the main stream press such as the Sydney Morning Herald (as a main stream newspaper in Australia). Hopefully, by this point, these viewpoints would start to influence government policy.
Geeks got on to the problem of software patents early. But the "geeky" point of view is often overlooked by governments. Economists are much more respected in government and probably can articulate an argument against software patents that probably will not be be overlooked. I'm looking from the perspective in Australia, I don't know how politics works in other parts of the world. But I hope that common sense will prevail.
Yet another ironic recursive statement.
The funny thing is that you can sue the federal government but the government must give you permission first. While there are cases where the government has given permission to sue, I'd imagine that suing the patent office may be more diffcult than suing a business.
It's not necessarily that simple. State immunity comes about in many forms, from what I gather. In the USA, it is likely that there are several ways to sue the government, or its agents.
1. Sue the agency itself, for harm arising from its negligence. As part of the Feds, it might be immune to civil lawsuits through Federal legislation.
2. Appeal to a tribunal, such as human rights tribunals (if the USA has those), or justice tribunals, or what have you. They sometimes pointedly get around state immunity legislation.
3. Sue the Patent Agent as part of the Agency; his negligent acts mean the Patent Agency is vicariously liable for damages. This may be different from suing the Agency itself, depending on the immunity legislation. If the Agent acted 'negligently' in their role, they may make the Agency liable.
4. Sue the Patent Agent as acting outside their duties. If they were so irresponsible as to have acted outside the boundaries of their job, they may be personally liable for your losses. Shallow pockets; sets a nasty precedent,though.
Mind you, you probably want to find a lawyer if it gets to that. Lobbying your senator or congressman, or whomever your elected representatives are, is probably the best option.
I am personally co-author of several patents where we took competitor patents as prior-art and created new patents with claims that anticipate competitor direction. You end up just expanding the independent claims to make them novel (the part you add is the anticipatory part). Of course, you can't use the invention yourself, because you'd be infringing the competitors patent. However, the competitor cannot practice the new patent either, potentially blocking their advance. They may need to licence from you in order to advance their art. Or, trade off licencing with other patents in their portfolio/ That's how it works. It's all legit, and a good way to maintain/gain/protect a competitive advantage. You can slag patents all you want, and yes there are BIG problems in the system, but, you need to play the game to not get squashed.