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Software Patents - A Variant on the Rant

_ There has been a very lengthy exchange on The Java Posse email list about software patents. Most contributors are against them. One contributor seems determined to say the system works, but is using the technique of not answering directly and requiring opponents to deal with spurious and deflecting issues. At one point there was the admission "I hadn't really thought about it . . . by simply observing that the system seems to be working okay for the most part". I had not contributed to the thread till this point on the grounds that the debate was going nowhere. However, I had to chip in at this point. Below is a minor variant of that email. _

The problem here is that only the high profile cases are being talked about. High profile cases involve Big Money. Big Money is where the patent system works because it is all about offensive and defensive patents as a business tool. It has absolutely nothing to do with protecting "the small guy" and allowing "the lone inventor" to licence his invention. In fact it never was about that, letters patent used in this way have always been about the state protecting monopolies for their friends - e.g. their use by Henry VIII.

The cases you need to know about to see that the whole software patents in the USA system is fundamentally broken are the one you never hear about - and will never hear about unless you are personally involved because of the "gagging orders" that are generally involved.

OK so let's have a data point. Exhibit A. ?id=26aJAAAAEBAJ&dq;=linked+list

So now everyone who uses skip lists in any software that has a presence in the USA is required to pay licence fees to Ming-Jen Wang.

I bet though there are very few people paying the licence fee that is legally required? Two of the reasons:

  1. Ming-Jen Wang does not have the resources to enforce the patent. I assume he is waiting for someone in the Big Money set to buy it off him so they can enforce it. e.g. GIF.
  2. The patent will never stand up in court due to prior art.

The real problem is USPTO issues patents willy-nilly and abdicates responsibility to the courts. USPTO take no responsibility for researching the application. At least the UKIPO do proper searches (though they obey the European ruling you quoted in an earlier email which says no software patents - though the EPO have started issuing some mainly due to pressure from Big Money, which means EU and Asian corporates as well as the obvious USA ones).

So in the end the lawyers make money. For the conspiracy theorists, the USA software patent system is by lawyers for lawyers. The fact that they have turned it all into a business tool for Big Money is a happy bonus that means they make more money.

It all comes down to resources. If you have them then you are in the game, if you don't you aren't. Lone inventors are not in the game.

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