Archive of UserLand's first discussion group, started October 5, 1998.

The "art" in "prior art"

Author:Nick Sweeney
Posted:2/28/2000; 12:49:07 PM
Topic:scriptingNews outline for 2/27/00
Msg #:15323 (In response to 15319)
Prev/Next:15322 / 15324

I had a long "discussion" with Richard Stallman at the end of last year about patent law and its discontents. We agreed to disagree at the time, though since then, behaviour such as Amazon's has made me come round more to his way of thinking.

My argument was that software patents don't necessarily limit innovation, because nobody consults the IBM patent database before creating a new piece of software. What they do limit is the ability of the community at large to benefit from its success or popularity: "let a hundred flowers bloom..." Patents are like a virulent ivy, strangling young growth.

The problem with Dave's idea for a library of prior art, I'd suggest, is mainly one of definition. After all, patents don't necessarily credit the ability to invent a technology, but rather the ability to define it. And the lifespan of patents, especially in the technology sector, makes it advantageous for those seeking patents to define things in sufficiently ambiguous terms that they can either appropriate later innovations, or defend themselves against claims of prior art.

So, you can assemble examples of prior art, but my guess is that no two people would define what these examples demonstrate in exactly the same terms. And where there's ambiguity, the patent-holders are likely to wriggle away. So it's important, if you're defending against patents that you think are unjust, to build the database around the patents themselves.

COUNTERPATENTS.ORG is available...

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