Re: [OT] Patent protection

["Lewis A. Mettler" <lmettler@lamlaw.com>]

Mitch,

Mitch Stone wrote:
> 
> --- From a message sent by Eric M. Hopper on 12/14/99 10:03 PM ---
> 
> >> No "rethinking" of the current state of the law is necessary to allay
> >> your concern.
> >
> >       I find a worrisome crop of things currently being patented and
> >copywritten.  I was merely trying to find a way to articulate my concern
> >in such a way as to make the problem that concerns me obvious.
> >
> >       Oh, well.  Here is probably not the place for such a discussion.
> 
> I think this is entirely on-topic. Technology appears to be blurring the
> line of what can and cannot be patented. For one, Celera Genomics has
> been feverishly filing patents on the human gene sequence. Pretty scary
> stuff.
> 
> We spend quite a bit of time discussing nonproprietary approaches
> software development (open source) and the manipulation of patented and
> copyrighted software products to achieve monopoly power. Some would argue
> that patents are in effect legalized monopolies.

They are monopolies however they do not necessarily come with monopoly
power.

This is why you have to focus upon the ability to preclude competition
not the monopoly in the abstract.  Trademarks and copyrights are also
forms of government sanctioned monopolies but they also may not come
with any measurable power to preclude competition.

This is also why Ford may not have a monopoly as opposed to Chevy but
could very well have as opposed to other parts suppliers and service
outlets.

Again, the focus is upon the ability to preclude competitors.

> 
> We've also talked quite a lot about what kinds of technologies may
> constitute "standards" in the computer industry. To my thinking, a
> standard must be something not owned or defined by a single player in the
> business, so perhaps the question of what can and should be offered
> copyright protection is germane.

I agree that a proprietary product is never a standard.  The word
standard implies a similar product is available from multiple sources
not simply a dominant product.

> 
> Also, the entire present character of the computer industry is predicated
> on the failure of IBM to maintain its copyrights on the PC. I've always
> argued that this should be understood as much more than just an
> historical curiosity/footnote.
> 
> The government had to come to grips with patent issues in the
> pharmaceutical industry, imposing restrictions and limitations. Perhaps
> the same reasoning needs to be explored in software. If so, to what
> extent? These are interesting and potentially useful questions, IMO.

The real problem with software patents is not based upon the content of
the patent.  The real problem is that few software patents will be
upheld if sufficiently challenged in court.  Many software patents fail
to reference prior art in their application and that can be a fatal
mistake.  Very little is really new in software technology.  Today, most
software patents could be invalidated simply because they fail to
reference prior art and are not truly new at all.

Of course if you are a patent litigator your future is very bright
indeed.  But, the future of many patents themselves is not so bright.

-- 
Lewis A. Mettler, Esq.(Attorney and Software Developer)
lmettler@LAMLaw.com
http://www.lamlaw.com/ (detailed review of the Microsoft antitrust
trial)