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

Re: Giving birth through conversation

Author:Andy Wright
Posted:8/13/2000; 9:46:30 PM
Topic:I patent breathing. I was here first. Quit breathing.
Msg #:19692 (In response to 19666)
Prev/Next:19691 / 19693

Actually it is worse if the toy inventor is not a lawyer, is not well heeled. Suppose she invents a pool toy, the little yellow ducky, which everyone admires and says that they would pay to have her make a ducky for them. She doesn't have an organization to produce and distribute them for her, so she looks for an investor. The investors say, they'd be a less nervous about getting their money back, if the inventor had a patent. The story turns out happily for the inventor, she applies for a patent and finds an investor to back production (and to defend and own the rights to the patent when it is issued).

When the patent attorney drew up the patent application, he followed the standard format of multiple claims, stating that one is never sure what can be sucessfully defended. The narrowest is very specific, stating it is a 3 inch long kid toy yellow plastic duck, which he assures the inventor can cirtainly be defended. The next might be more general, stating that it is a water animal, and is designed to be slightly unstable in the water, so that it bobs as if alive. Finally, the most general claim stating it is any farm animal, allowing non-violent imaginary play.

Problems arise if pool toys are a recent or rapidly developing art as is softwre. What is prior art? What if plastic animal pool toys have not been sold through craft outlets yet, appearing in their catalogs. What if it is said that fashioning a toy out of plastic is a good way to make it float, but college art books talk only of carving wood toys.

The artisan can not address this problem herself, as the standard patent format produces an uncontrollably slippery slope to generalization of claims and the patent itself was instrumental in obtaining the financing.

The only defense of open or community art is the creation of a body of literature defining the public commons. This literature must go beyond discussion of the (potential) merits of, for example, the use of plastic in pool toys. It must cover actual techniques which must be mastered to fashion toys out of plastic.

From the open software prospective, user and design documentation has traditionally been woefully inadequate. Personal web sites are frequently too transient, incomprehensive, or inadequately documented to define the art. Traditional Blog discussion of ideas and programs would not be specific enough to defend the art. Of all the current internet communication forums, only news groups, such as xml-rpc, which provide support for 'newbe' programers, provide adequate basis for the definition of public art.

This protection would not extend to privately developed extensions to the public art, as individual artists or small companies do not have the resources to defend against law suites aimed at their unique contributions. There is no presumption of innocence in patent law; corporate money trumps.

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