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Re: Draft Policy Approval

From: Chaim Scheff - Patent Attorney <Chaim_Scheff@Bit-On.Co.iL>
Date: Thu, 29 Jan 2004 10:27:51 +0200
Message-ID: <029401c3e641$c9374090$4aca1dd4@yourr64slkwmas>
To: "Ryan Schlesinger" <rschlesi@opentechinc.com>, <www-patentpolicy-comment@w3.org>

01Patents Ltd. --- POB 28051 Jerusalem Israel --- www.01Patents.com



Mr. Schlesinger:



I commend the pragmatic limitation embedded in your comment; and would like
to briefly expand its detail - firstly, in the hope that future comments
lacking points of issue will not be broadcast in this forum - and, secondly,
with an aim to suggesting a solution to the often chanted dilemma of "how to
live in a software patent-able world" which you allude to.



The W3C Patent policy is the best that one can hope for. Briefly, it has two
cutting edges and one fatal weakness. The first edge is to demand full
disclosure of potential patent rights prior to consideration of any software
aspect for inclusion in standards. By the second edge, it requests that
royalty rights to any such patents be waived; but reserves the right to
consider such software in the absence of a waiver. Nevertheless, all of this
presumes that the proponent of the software aspect is the holder of the
patent right or at least aware of its existence, and that is the latent flaw
in the policy.



One can presume that the collective expertise and interests of the W3C
community can generally find provocative prior art to remove the
underpinnings of a problematic patent (e.g. US Patent No. 5,838,906
http://www.w3.org/2003/10/27-rogan.html) or at least bring sufficient
political weight to the licensing negotiations to barter other privileges in
exchange for reasonable non-discriminatory licensing terms. But there is no
foolproof guarantee that this policy is robust enough to protect the Web
from the propagation of a legal rights "virus" - hence a need for a
longer-term policy initiative is anticipated.



Accordingly, I take up the second point of your comment; that it may not be
practical to object to software patents (in principle). Historically,
copyright protection was (and is) used for software - but this only gives
narrow rights to the literal embodiment of the coding. In the apparent
absence of any other avenue for intellectual property rights and in the
obvious environment of substantial economic interests, the Patent Offices
(starting with the USPTO) allowed software patents (teaching a technical
"trick") and business method patents (for "inventions" where the "trick" was
non-technical). Now all of this became necessary because of the essential
(doctrine of) equivalences between software, hardware, firmware, etc. -
software really being a rapid reconfiguration technology of hardware.



However, in the historical gap between becoming convinced of the
insufficiencies of the copyright system for software and the emergence of
patent right for software, another mode of legal protections was created -
Semiconductor Mask Work Rights (a long-negotiated little-used international
system). Simply stated, by integration of the doctrine of equivalence into
the Mask Work Rights understandings and thereafter-legislating migration of
software patents into Mask Work Rights - a more equitable balance between
rights, privileges, interests, and incentives can be achieved. By this
comment, I agree with your frustration in navigating the current legal
bollix of software patents; and offer my hopefully positive suggestion for
your consideration.



Respectfully,



                                        Prof. Chaim Scheff - Patent Attorney
& Licensed Engineer
                        Jerusalem College of Technology - Hochstein School
of Industrial Management






----- Original Message ----- 
From: "Ryan Schlesinger" <rschlesi@opentechinc.com>
To: <www-patentpolicy-comment@w3.org>
Sent: Thursday, January 29, 2004 12:44 AM
Subject: Draft Policy Approval


>
> I am a co-founder of a company that strives to make commercial grade
> open source software.  In that light I request that the W3C would
> approve the draft patent policy.  It will preserve my rights and the
> rights of others in the Open Source Community.  I would go so far as to
> object to all software patents even though that may not be practical at
> this time.
>
> -- 
> Ryan Schlesinger
> Vice President of Information Technology
> Open Tech, Inc.
> cell:  (540) 818-2814
> ryan@opentechinc.com
> http://www.opentechinc.com
>
Received on Thursday, 29 January 2004 03:35:55 GMT

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