I too am a patent attorney and a regular slashdot reader, and commend Mr. Young for taking the time to write an excellent and informative article. I have some different viewpoints on some of the issues that he addresses, however. I also have some suggestions as to how the open source community can help with this problem. As with Mr. Young's comments, none of this is intended as legal advice.
First, no lawyer that I know (and I know far too many) would counsel their client to avoid becoming familiar with the patent situation in their field in the hope of avoiding getting tagged for willfulness. Most lawyers and their clients vastly prefer to deal with these situations by evaluating the patent and either (1) getting a clearance opinion in place or (2) trying to negotiate a license.
Second, mere knowledge of a patent is not the touchstone for determining willful infringement (and therefore for determining increased damages). The situation is much more complicated, involving a highly factual, "totality of the circumstances" approach to the question of whether the alleged infringer (a) respected the patent rights of others by (b) developing a reasonable, good faith belief that their product/service did not infringe.
Third, the situation for those innocently infringing is made worse by a poorly defined legal doctrine known as the "doctrine of equivalents." Basically, this doctrine allows a court to find infringement even if the device/service is not strictly within the scope of the claims, but contains changes that the plaintiff's attorneys can convince a judge or jury are "insubstantial."
The whole situation is a nightmare for software developers who don't work for large corporations with in-house legal staff. One big problem is tha t most of these software patents are probably invalid, but once granted are presumed valid by statute. It is extremely difficult to get one of these things invalidated once it has issued.
Open source software has the potential to be an enormous boon in resolving this problem. One of the major issues faced by the patent office is the inability of the patent examiners to adequately search the prior art, because they don't have access to much of it. Having source code publicly available is an important first step in addressing this problem. Making the patent office aware of it is the next step.
There already exist some organizations that put out calls for prior art to attack particularly notorious software patents, and slashdot readers are probably already familiar with them. Their efforts should be assisted and lauded. However, a more fundamental approach with greater long term benefit to the public is to make the patent office aware of what has been done in the industry in the past, so that they can integrate this prior art into their search and classification system, making it accessible to examiners who issue these patents, and hopefully preempting the hijacking of some of these algorithms, software, etc.
Everything that you said tracks exactly with my recollection of my undergraduate days. However, most of the idiots at the university I attended could get away with taking "calculus for business majors" and "baby bio" to fulfill their math and science distribution requirements. The premed weed out courses were chemistry and physics, and the number of cut-throat premed students that you describe was astounding. My reaction was to flee to engineering, where the students were less grade-driven (by necessity -- the course work was so incredibly hard), the classes smaller, and the atmosphere more collegial. I was able to concentrate on learning the material, and enjoying the utter coolness of figuring out not only how the physical world really works, but how to use that knowledge to make it do what I wanted. Even though I don't do engineering now, I wouldn't trade this background for any (god forbid) liberal arts degree in the world.
You've left out an important "feature" of the government view of the "paradigm." Information is only sacrosanct if it's the government's information. If the information belongs to a mere citizen, then it is imperative that that government be able to access and decrypt it because, you never know, that citizen might be up to no good. Welcome to fascism. Don't worry, it will get worse.
First, the article quotes a public relations flack for the purported patentee. Lawyers for companies making digital audio devices would probably have a quite different view of the scope of the patent claims (although a search of the PTO website for patents assigned to Audiohighway turned up nothing). Audiohighway has probably just received a notice of allowance from the PTO indicating that they intend to issue the patent in the near future.
Second, instead of crying about this, do something about it. If the U.S. application was filed in 1995, and if the technology is important enough to file abroad, a PCT application may have been filed. These publish 18 mos. after the first filing date (in this case, some time in 1995), so if such an application exists, it should be published by now. The advantage to this is that you can search (on IBM's patent webserver) for the PCT application, get the U.S. application number from the priority information, and file a protest in the PTO (the MPEP, available on the PTO website tells you how) bringing prior art to the attention of the PTO. If enough people do this, and the prior art is realistic, it could gum up the works for the patentee for a while.
Even after the patent issues, it can be reexamined by bringing art to the attention of the PTO. By filing protests (which do not cost anything to file), the public can at least get the prior art in the file, so that when the digital audio companies review the file history (in response to the demand letters the patentee will surely send them), the art will be available for them to use in their reexamination requests as well.
Keep in mind that, if the patentee has to amend his claims substantially in the reexamination proceeding, any sales previous to the amendment are not subject to damages.
Slashdot Mirror
I too am a patent attorney and a regular slashdot reader, and commend Mr. Young for taking the time to write an excellent and informative article. I have some different viewpoints on some of the issues that he addresses, however. I also have some suggestions as to how the open source community can help with this problem. As with Mr. Young's comments, none of this is intended as legal advice.
First, no lawyer that I know (and I know far too many) would counsel their client to avoid becoming familiar with the patent situation in their field in the hope of avoiding getting tagged for willfulness. Most lawyers and their clients vastly prefer to deal with these situations by evaluating the patent and either (1) getting a clearance opinion in place or (2) trying to negotiate a license.
Second, mere knowledge of a patent is not the touchstone for determining willful infringement (and therefore for determining increased damages). The situation is much more complicated, involving a highly factual, "totality of the circumstances" approach to the question of whether the alleged infringer (a) respected the patent rights of others by (b) developing a reasonable, good faith belief that their product/service did not infringe.
Third, the situation for those innocently infringing is made worse by a poorly defined legal doctrine known as the "doctrine of equivalents." Basically, this doctrine allows a court to find infringement even if the device/service is not strictly within the scope of the claims, but contains changes that the plaintiff's attorneys can convince a judge or jury are "insubstantial."
The whole situation is a nightmare for software developers who don't work for large corporations with in-house legal staff. One big problem is tha t most of these software patents are probably invalid, but once granted are presumed valid by statute. It is extremely difficult to get one of these things invalidated once it has issued.
Open source software has the potential to be an enormous boon in resolving this problem. One of the major issues faced by the patent office is the inability of the patent examiners to adequately search the prior art, because they don't have access to much of it. Having source code publicly available is an important first step in addressing this problem. Making the patent office aware of it is the next step.
There already exist some organizations that put out calls for prior art to attack particularly notorious software patents, and slashdot readers are probably already familiar with them. Their efforts should be assisted and lauded. However, a more fundamental approach with greater long term benefit to the public is to make the patent office aware of what has been done in the industry in the past, so that they can integrate this prior art into their search and classification system, making it accessible to examiners who issue these patents, and hopefully preempting the hijacking of some of these algorithms, software, etc.
Everything that you said tracks exactly with my recollection of my undergraduate days. However, most of the idiots at the university I attended could get away with taking "calculus for business majors" and "baby bio" to fulfill their math and science distribution requirements. The premed weed out courses were chemistry and physics, and the number of cut-throat premed students that you describe was astounding. My reaction was to flee to engineering, where the students were less grade-driven (by necessity -- the course work was so incredibly hard), the classes smaller, and the atmosphere more collegial. I was able to concentrate on learning the material, and enjoying the utter coolness of figuring out not only how the physical world really works, but how to use that knowledge to make it do what I wanted. Even though I don't do engineering now, I wouldn't trade this background for any (god forbid) liberal arts degree in the world.
You've left out an important "feature" of the government view of the "paradigm." Information is only sacrosanct if it's the government's information. If the information belongs to a mere citizen, then it is imperative that that government be able to access and decrypt it because, you never know, that citizen might be up to no good. Welcome to fascism. Don't worry, it will get worse.
First, the article quotes a public relations flack for the purported patentee. Lawyers for companies making digital audio devices would probably have a quite different view of the scope of the patent claims (although a search of the PTO website for patents assigned to Audiohighway turned up nothing). Audiohighway has probably just received a notice of allowance from the PTO indicating that they intend to issue the patent in the near future.
Second, instead of crying about this, do something about it. If the U.S. application was filed in 1995, and if the technology is important enough to file abroad, a PCT application may have been filed. These publish 18 mos. after the first filing date (in this case, some time in 1995), so if such an application exists, it should be published by now. The advantage to this is that you can search (on IBM's patent webserver) for the PCT application, get the U.S. application number from the priority information, and file a protest in the PTO (the MPEP, available on the PTO website tells you how) bringing prior art to the attention of the PTO. If enough people do this, and the prior art is realistic, it could gum up the works for the patentee for a while.
Even after the patent issues, it can be reexamined by bringing art to the attention of the PTO. By filing protests (which do not cost anything to file), the public can at least get the prior art in the file, so that when the digital audio companies review the file history (in response to the demand letters the patentee will surely send them), the art will be available for them to use in their reexamination requests as well.
Keep in mind that, if the patentee has to amend his claims substantially in the reexamination proceeding, any sales previous to the amendment are not subject to damages.