I was pleasantly surprised to see the banner on the
linux-mandrake home page regarding a petition for no
ePatents.
This makes me wonder, where is the American
equivalent? It is in fact the U. S. Patent and
Trademark Office that is one of the biggest
embarassments of the digital age. If you want to
consider this off-topic, or you already know why there
should be no ePatents, read no further.
SCENARIO:
An individual working somewhere comes up with a neat
little algorithm to do something useful. He publishes
it on the internet, and lots of other people think it
is useful, too and incorporate it into their software.
It is an algorithm based on a mathematical fact, and it
has been offered to the public, so no copyright is
possible.
Enter the Technology Company. It doesn't produce
anything. It is a CEO and two battalions of lawyers,
and a couple secretaries to handle correwspondence and
a computer operator to run the bookkeeping system.
They go to this individual and say, "Hay, what a neat
idea. Did you know you could patent it? We'll help
you for $10,000 and when the patent is granted we'll
pay you $50,000 for it."
So the patent is applied for and granted and the rights
are assigned and $40,000 changes hands (The $50,000
less the $10,000 "fee".) Now the technology company
holds the patent rights to software ALREADY in use (but
not in use for a full year before the patent
application).
The patent might be worthless. It is based on a
mathematical fact, after all, and built on public
domain knowledge, but to prove it is worthless, someone
is going to have to go to court, and spend between 2
million and 200 million dollars in a 10-15 year fight
to prove it. Everyone working in the industry is
either aware of this or has a lawyer who will advise
him of it.
Now the technology company approaches the Company A,
which is using software or selling software which
contains the algorithm, and proposes a licensing fee.
The management of Company A has to decide among three
choices a) stop using the algorithm, no matter the
cost (and this includes pre-sold software which would
have to be recalled and reparations made for the use of
the algorithm by the customers). b) Pay the licensing
fee, even for a long-term agreement (the life of the
patent), or c) risk the company's money on a court
battle where you lose even if you win. Now which do
you think they will choose.
The owners/managers of Company A are in a position
nearly identical to the candy store owner in an inner
city ghetto who is approached by the ruling gang and
asked to buy insurance against vandalism. In this
case, it's "Pay up or we'll destroy your life and wreck
your company in court." as opposed to, "pay up or
we'll burn down your business and break your legs."
But the Technology company is by no means done.
Obviously, since the algorithm enjoyed a brief period
of apparent freedom, it is reasonable to assume that
there is yet "pirate" software out there NOT LICENSED
and paying a fee. If this algorithm produces something
that can be placed on web sites...
Dear Web site Owner/Operator:
THe BBB Technology Company holds the patent rights to
the software for producing widgetform fluxawarbles
which have gained great popularity on the world wide
web. Since there are unlicensed programs that utilize
the patented algorithm for the production of widgetform
fluxawarbles, there is a potential infringement on your
site from any of your customers who may have placed
unlicensed fluxawarbles there.
I am writing this to inform you of an opportunity to
avoid any potential litigation from possibly unlicensed
fluxawarbles on your web hosting service for a one-time
license fee the nominal sum of $17,500. Please make
your check payable to the BBB Technology Company and
amil it today.
Thank you in advance for your early payment.
Yours very truly,
I. M. Suing
Chief, Lawyer battalion 417
And what does that mean to Joe Programmer?
JOe has to research the algorithms granted patents, the
filfe formats granted patents, and then perhaps pay an
attorney to research faster, better and further amongst
the myriad of ePatents -- and for what?
So Joe Programmer can write, "hello, world" version 3.
Scientists, including computer scientists, shopuld be
allowed to stand on each other's shoulders. That is
what is of highest and best interest to the public and
to science. Instead, the current patent morass and
proprietary software has computer scientists standing
on each other's feet. And, until we find a better
system and implement it, the situation will worsen
rather than improve.
Please, go sign the petition. Please,, someone, let's
get an American version of the petition going. We are
one of the biggest parts of the problem, thanks to the
embarassment of an understaffed PTO whose policy is,
"Grant it, and let the courts decide if it is valid."
Civileme
