Re: ripped off by the evil empire

[Dean Anderson <dean@av8.com>]

Around 01:40 AM 7/11/1999 -0400, rumor has it that Richard Stallman said:
>    Could this be the beginning of a movement?
>
>We made one attempt to start a movement against software patents--the
>League for Programming Freedom.  It didn't take off, that time.  But
>if enough people are interested, it would be great to make another
>try.

Though the LPF has been domant for the last few years, the LPF achieved a
lot, and completely turned the situation around user interface patents.
The patent issue is more complex than mere injustice. The patent system
serves a critical business function, and many of the significant users of
that system were not greatly dissatisfied with its functioning.  Until
those powerful users realize the system needs to be changed, it will not be
changed.

The key user community with power and influence is the venture capital
community. Both the venture capitalists who based funding decisions partly
on the presence of a patent, and the people looking to get funded, who felt
they needed a patent.  They wanted patents to be processed faster, and they
got it.

I think the situation is beginning to change in the venture capital
community. Some of the harms we predicted years ago are beginning to be
common, practical experience for venture capitilists and the entrepreneurs
they fund. Patents are not a good system for software. And the venture
community is beginning to realize that having a patent is not the panacea
it was thought to be. 

So its not that LPF didn't catch on, its that these laws can't be changed
easily or quickly.  This is something we have to be in for the long haul.
Possibly,  I can see two conditions happening which cause these laws to be
changed: The software startup industry growth slows down, and the venture
capital community becomes dissatisfied with the patent system.

When there is a break software industry growth, people will be more
intested in making changes. Until then, it is sort of like tinkering with
the goose which is laying golden eggs.  But it will eventually slow down.
That is inevitable. The second condition is already slowly beginning to
happen within the venture capital community.  

As a matter of strategy, it has done us little or no good to try and
convince the business community by argument that patents are bad for them.
We have tried. Being right is often not enough.  They have to learn it by
experience.  Once they are convinced the system isn't going to work, we
will present the LPF as expert on the patent system.  We've been around for
a long time, and have a well considered solution.

Then we will get the changes we want, and need.  Until then, keep the
faith, and tell people about why patents are bad.  And do not set the
expectation that the LPF will change the law next year. We pretty certainly
won't.  But we are  going influence the situation once it becomes possible
to do so.

However, while I agree with RMS's idealogical perspective, from a practical
perspective, I have to say that the current law definitely promotes getting
patents.  Without a patent, you can be abused greatly by someone who does
have a patent on a closely related [or even the same!] idea. Without a
patent, you cannot try to negotiate cross licensing, for example. So if you
have a patentable idea, you should patent it.  Even if you publish your
idea, it is possible for the unscrupulous to patent with a false claim of
slightly earlier invention. Or honestly be unaware of your earlier
invention.  Either case places the inventor without a patent in a bad
position.  [of course, having a patent isn't a good position, but it is
better than the alternative]

And once the law is changed to first-to-file to conform to GATT, (which
ought to happen in 2000 or 2001, I think**), publishing without patenting
won't help.   At that time, it will be madness not to patent everything you
can think of.

While RMS is absolutely right about the degradation of our freedom as well
as other harms of software patents, the current law and the positions and
roles that it imposes on inventors and business cannot be ignored.  

		--Dean

**A law has already been passed which grandfathers any user of a patented
technology before it was patented.  In other words, if you used the patent
before it was patented, then the patent holder can't prevent you from using
it.  Of course, in first-to-invent, this has no effect. Patents currently
begin at the invention date. If you used the patented idea before then, you
would be the first inventor, and could invalidate the patent.  However,
once the system becomes first-to-file, the situation is changed, and it
will be possible to invent something first, but not be the patent holder
and unable to invalidate the patent on the basis of being the first inventor.


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           Plain Aviation, Inc                  dean@av8.com
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