Begin forwarded message: From: Kent Quirk <kent_quirk@xxxxxxxxxxxx> Date: December 1, 2006 12:23:30 AM EST To: dave@xxxxxxxxxx Subject: Re: [IP] more on Wi-Fi standards face patent threat Dave:It's not a matter of software engineers being too stupid or ill- informed to respect patents. It's that it's literally impossible to do our jobs while attempting to comply with the current patent regime.
First of all, responsible legal departments at software companies tell their engineers NOT to read patents. If you get sued for patent infringement and you are shown to have known about the patent in advance, even if you thought you had designed around it, you're liable for treble damages. If you *didn't* know about it, it's simple damages. It's better not to know.
Secondly, software engineering is a special process. In product development in the mechanical world, the product is typically designed by assembling existing parts purchased from suppliers. Individual parts may be patented, but it's generally presumed that the part suppliers have resolved any patent issues and have the rights to distribute the parts. The number of original "inventions" in the creation of a new mechanical product is typically numbered in the single digits.
In software engineering, every "part" is created from scratch. I wrote a couple of hundred lines of code today. Every line was original, but I could probably identify a couple of dozen engineering problems I solved in the process. Each of those lines of code may be subject to a patent somewhere. Even if I wanted to search for them, there's no reasonable way to do so. A relatively small commercial application, written entirely from scratch using a couple of hundred thousand lines of code, could potentially infringe (and probably does) on tens of thousands of patents.
Given the same design constraints on a big problem, ten engineers would probably produce ten very different designs. But given the same design constraints on a little problem, ten skilled software engineers might only produce two or three unique solutions. Suppose one of them patents one of these solutions. Now I have something like a 1 in 3 chance that when I come across the same design problem that I'll end up infringing a patent.
If it's that easy to infringe, it seems to me that the solution was obvious to a skilled practitioner. Yet we see patent after patent being granted on just such obvious inventions. A perfect example is this week's controversial patent on using multiple linked lists within a collection of data items.
The scale of "invention" in the software industry is so wildly different from the way it works in other fields that the patent system as currently defined is completely broken. We have no other choice as software engineers than to ignore the patent system entirely while doing design work, and hope that we're not crushed under it when it falls down. We have to let lawyers and big companies fight it out with the trolls and opportunists.
Bruce Perens wrote a good document on the problems with software patents as they relate to standards. But it applies to software patents in general. You can find it here:
http://perens.com/Articles/PatentFarming.html
Kent
David Farber wrote:
Begin forwarded message: From: Milan Merhar <reference.desk@xxxxxxxxx> Date: November 30, 2006 11:19:31 AM EST To: dave@xxxxxxxxxx Subject: Re: [IP] more on Wi-Fi standards face patent threat Dave,Although I sympathize with Mr Margolin's frustration, Mr Paulsen's words are exactly the same advice I've heard from several legal advisers, and he shouldn't have to shoulder the blame for reporting it. After all, their job is to steer their client away from risk, and the potential for assignment of multiple damages from intentional infringement is indeed an avoidable risk in their minds.Unfortunately, the benefit of more informed engineers building new inventions upon the teachings of issued patents is not one that law counsel can quantify, thus making it difficult for their clients to strike an appropriate balance in the way I think all of us would prefer to see.- milan On 11/30/06, David Farber <dave@xxxxxxxxxx> wrote: Begin forwarded message: From: George Margolin <inventor@xxxxxxxxxxxxxxxxxx> Date: November 29, 2006 11:02:19 PM EST To: dave@xxxxxxxxxx Cc: "'Ronald J Riley'" <RJR@xxxxxxxxxx> Subject: RE: [IP] more on Wi-Fi standards face patent threat Reply-To: inventor@xxxxxxxxx Dave -- if Mr. Poulsen actually IS a "Senior Engineer and Partner at a StartUp company" -- I would STRONGLY recommend NOT investing in that companybecause he is like a blindfolded man lighting matches in a firecracker factory. So please let us know the name of his company so that we don't accidentally invest in it. It will surely be doomed -- in fact -- Kaboomed! Poor Mr. Poulsen is Wrong about the purpose of the American Patent System. He is knowledge less about how it works, why it exists and how and why America has become and has remained (at least until now) the technological leader of the world. And he is more than cavalier about NOT reading and theNOT knowing when his company will be in trouble by blindly STEALING thecreative and patented creations of other who ARE playing by the rules and disclosing and TEACHING their technology so that others may learn and build upon it. George Margolin Vice President Professional Inventors Alliance -----Original Message----- From: David Farber [mailto:dave@xxxxxxxxxx] Sent: Wednesday, November 29, 2006 10:09 AM To: ip@xxxxxxxxxxxxxx Subject: [IP] more on Wi-Fi standards face patent threat Begin forwarded message: From: Lars Poulsen < lpoulsen@xxxxxxxx> Date: November 29, 2006 12:16:10 PM EST To: dewayne@xxxxxxxxxxxxxx, dave@xxxxxxxxxx Subject: Re: [IP] and [Dewayne-Net] Wi-Fi standards face patent threat>> Patents ... have become so not what the founding fathers had in mind>> when they hardwired them into the constitution. Indeed. As a senior engineer (partner in a start-up company) it is in my best interest NOT to read any patents related to my field. If I read patents and learn anything in the process, I am obligated to try to negotiate a license for using what I learned. Since the owner of the patent is likely to be a competitor, it is likely that he will be unwilling to grant a license on terms that are acceptable to me. If I DON'T read the patents, and independently come up with the same techniques, I have a pretty good defense of obviousness. And if I keep my circuit designs and source code as trade secrets, who is to know that I achieved the same features by the same mechanisms anyway? So much for patents "promoting innovation in the arts and sciences". / Lars Poulsen Afar Communications Inc
-- ------------------------------------------------------------ Kent Quirk I'm making a game about global warming. Game Architect Track the progress at: CogniToy http://www.cognitoy.com/meltingpoint ------------------------------------- You are subscribed as roessler@xxxxxxxxxxxxxxxxxx To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/