Re: Mailing List Patent Policy

On 2/2/13 5:29 PM, David Nicol wrote:
  > On Sat, Feb 2, 2013 at 6:22 PM, Steven Rowat
> <steven_rowat@sunshine.net <mailto:steven_rowat@sunshine.net>> wrote:
>
>
>     Needing to pretend publicly to not know about something that you
>     in fact need to discuss to do your work seems unhealthy to me; and
>     perhaps is unworkable anyway in a supposedly public mailing list.
>
>
> when does infringement start, anyway?

A good question, and I think part of the problem is that the answer is 
"it's almost impossible to be sure".

And I guess I'd better start with a disclaimer. :-)  I've been out of 
this for 20 years, and only read about it sporadically out of 
interest, so take what I say with a grain of salt, but:

Legally, the 'who invents first' and 'who files first' differences are 
important (the US changes this year, according to Wikipedia), and, as 
you can see by their examples, can be complex when there are overlaps.
http://en.wikipedia.org/wiki/First_to_file_and_first_to_invent

Or looked at another way, infringement starts when they start to sue 
you. As I recall this is the main basis of it legally; your patent 
gives you the right to exclusive commercialization of your idea, but 
if someone else does it anyway, no one will stop them except you, the 
patent-holder. The government won't. You have to sue them yourself. 
That's why the whole system favors the deep pockets, because patent 
litigation is hideously expensive and generally only large companies 
can afford to do it.

I read a credible report of a deal consisting of several people from 
one of the largest computer corporations walking into a room and 
saying (I've forgotten the precise numbers, but approximately), "We 
have 150 patents we can sue you under. So forget the negotiations, we 
don't care whether you're actually entitled to this one patent you're 
crying about. We want to make the wigit and we're going to."

So, in many cases, effectively, infringement starts when a large 
enough company decides they'd rather make your thing than have you 
make it. Regardless of who the patent is granted to.

Which of course is why Manu suggested avoiding the whole scene. But as 
Jeff points out, that may not be the right course here.

A tough issue, certainly.

Steven Rowat

Received on Sunday, 3 February 2013 03:12:19 UTC