Archive of UserLand's first discussion group, started October 5, 1998.
Re: Spawn of the Devil?
Author: Gary Robinson Posted: 7/25/2000; 9:42:04 AM Topic: Spawn of the Devil? Msg #: 19025 (In response to 19018) Prev/Next: 19024 / 19026
Here's an idea: if a patent is overturned in court then the USPTO should pay the legal costs and damages incurred by the party or parties that caused the overturn. Why aren't they liable? Isnt that the missing link that would prevent all those bad patents from ever being issued in the first place?I don't think it would work (although my immediate, reflexively unfiltered response was "Great idea!"). The problem is not that the PTO is irresponsible, but that they don't have the resources in place to do a decent prior art search. The software industry could supply such a resource, but isn't choosing to, unless somebody has started to do some work to take advantage of Bezos' offer to help fund such a database's development.
Part of the problem is that the PTO doesn't have enough money to build such a resource itself, and Congress just passed a bill that, if passed, will siphon off even more of its funding into other things, which will make the problem worse.
Another problem is that there arguably needs to be a period before a patent is issued where it is publicized and third parties have a chance to present prior art. That needs an act of Congress to happen -- penalizing the PTO won't help.
OK, so are you saying that Bezos's use of patents is "bad"? Or is he in your "good" camp?
Well, as far as I know, Bezos is not suing any little guys, extorting them into paying him royalties so he can get rich off the royalties.
He's in a position where he has a competitive tool he can use against his biggest competitor, and if I were an Amazon shareholder, I would be upset if he didn't use it. So I don't think he has much choice in that matter.
But, also notice that he has taken on a company which CAN easily afford the legal expenses of putting up an argument to try to invalidate the patent. As far as I know, he has NOT challenged anyone else. If B&N wants, they can create a situation where a jury will see and hear from many experts who will argue why the patent is as obvious as many people think it is. If the jury thinks they are right, they can cause the patent -- or the offending claims -- to be invalidated.
So, I think what Bezos has done here is the right thing, not only because he arguably has no choice, but because he has created a situation in which a powerful adversary has the opportunity to kill it forever if they can convince a jury that it is really so obvious.
In other words, he has chosen for the patent to be truly tested.
But, in general, my interest isn't in whether a particular patent is valid or not, but in the overall system. I think there should be software patents, but of shorter duration. I think some bad patents will happen, and be enforced, if there is a patent system, but that it is worth it overall.
If the lifetime of software patents was shortened to a period that is appropriate to the industry, mistakes that are made won't matter nearly as much.
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