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- Path: sparky!uunet!gatech!emory!ogicse!mintaka.lcs.mit.edu!ai-lab!life.ai.mit.edu!friedman
- From: friedman@gnu.ai.mit.edu (Noah Friedman)
- Newsgroups: sci.crypt
- Subject: RSA patent suit by PKP
- Message-ID: <FRIEDMAN.92Dec21185527@nutrimat.gnu.ai.mit.edu>
- Date: 22 Dec 92 02:55:27 GMT
- Article-I.D.: nutrimat.FRIEDMAN.92Dec21185527
- Organization: Free Software Foundation, 675 Mass Ave. Cambridge, MA 02139
- Lines: 83
- NNTP-Posting-Host: nutrimat.gnu.ai.mit.edu
-
- Recently someone posted an article concerning a person who was sued by
- RSADSI and suggested one way of going about testing the patent, which was
- to file for re-examination (which costs $3K to start). Below is an article
- by the League for Programming Freedom which explains why this may be a bad
- idea.
-
- [More info can be obtained about the LPF by writing to lpf@uunet.uu.net,
- and various articles on miscellaneous LPF-related topics are available via
- anonymous FTP from ftp.uu.net in /doc/lpf.]
-
-
-
- Getting Rid of Bad Patents
-
- Any software patent is more or less bad--for software developers.
- Precisely how bad a particular patent is depends on how often
- programmers want to do the things that are forbidden by the patent,
- and whether other alternatives are likewise prohibited.
-
- Some software patents are bad in another sense: they are patent office
- mistakes which cover things that are obvious or were already well
- known. In some cases (but not all), the mistake can be proved with
- published prior art.
-
- If you know about a patent that the Patent Office has issued by
- mistake, what should you do? You can send information about prior art
- to the Patent Office, and even pay them for reexamination of the
- patent, but should you? According to Jerry Cohen of Perkins, Smith
- and Cohen, this is often a bad idea.
-
- The first problem is that reexamination is handled by the same Patent
- Office which made the mistakes in the first place. Even worse, the
- Patent Office invites the patent holder to rewrite the patent; the
- rest of us are excluded from the process.
-
- Naturally, the patent holder tries to gerrymander the borders of the
- patent so that it excludes the known prior art while including what
- programmers really want to do. Unless what we want to do in today's
- software is precisely the same as what is in the prior art (and this
- is rarely the case), the patent holder can usually find a way to cover
- what is useful today while excluding the prior art. This makes the
- patent more dangerous, because any prior art considered during
- reexamination is no longer useful for overturning the patent in court.
-
- This gerrymandering is all the easier because the US Patent Office
- takes an almost mechanical approach to deciding what can be patented.
- They have nearly abandoned the idea of judging whether an idea is
- unobvious; if it is merely different, they issue the patent. Right
- now, there is much upset in the computer industry about a patent
- covering--literally--hard disks 3.5 inches in diameter. (Presumably
- you can safely make disks 3.4 inches in diameter, or 3.6; but those
- are not standard sizes everyone wants to use.)
-
- Yet, should you go to court afterward, you will find that the court
- presumes that the Patent Office did its job properly and is reluctant
- to question how it dealt with a particular piece of prior art.
-
- According to Cohen, your chances are much better if the Patent Office
- did not consider the prior art that you have; then there is no Patent
- Office judgement to command a presumption of correctness, and the
- court must consider the prior art from a more neutral standpoint.
-
- Cohen says that your best strategy in fighting a patent is to keep the
- prior art away from the patent holder; to disclose as little as
- possible of its details. This hinders the patent holder's attempts to
- gerrymander the patent.
-
- For this reason, it can be a bad idea to send prior art to the Patent
- Office for a patent's file. The patent holder can see the file as
- well as anyone else.
-
- Another plan for informing the Patent Office about prior art is the
- Software Patent Institute. This organization aims to collect and
- organize records of prior art to make it easier to reject patents that
- are bad in the sense of mistakes. This too can easily backfire by
- making it easier to craft patents to cover what people want to do
- today. Not surprisingly, the SPI is supported by large companies such
- as IBM that benefit from patents.
-
- The best way to use prior art is to give it only to those who are
- threatened with the patent. One way you can do this is by sending a
- copy to the League for Programming Freedom. The League keeps files of
- prior art to assist those threatened with software patents.
-