Subject: Re: Shuffle those deck chairs!

From: [email-masked] (scott bradner)
Date: Fri, 22 Oct 2004 09:26:07 -0400 (EDT)

> With the US moving to a European-style "first-to-file" discipline,
> how would this help?

see http://www.wordiq.com/definition/Prior_art

prior art is still useful

Scott

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From: Vernon Schryver <[email-masked]>
Date: Fri, 22 Oct 2004 09:46:12 -0600 (MDT)

> From: [email-masked] (scott bradner)

> prior art is still useful

but not necessarily in naive, open compilations that do patent
holders the most good.  I was told by participants in the XOR-cursor
court battle that it was lost because the opposition learned of the
killer prior art in time to weave a defense. 
Recall the results of the re-examination of the LZW patent.
Prior art is not nearly as effective as it is supposed to be according
to people who've never spent time and money with patent lawyers.

The notion that the IETF can do anything about bogus patents is at
best the obverse of the bad coin that let Motorola-Codex mess up CCP
and try to attack Van Jacobson Compression in the PPPEXT WG for years
starting about 10 years ago.  The IETF administration professed to
take those patents seriously.

A list of relevant patents without pretensions of prior art lets people
use their own judgement.  If you are competent to implement a protocol,
then you probably have a fair idea of the readily available prior art.
The important data are the names of the patent holders.  When you look
at patents, you should not be trying to decide whether your lawyers
can use prior art to break them in court, even in the unlikely case
that you are competent to have legal opinions.  You should be deciding
whether the patent holders would want to block the sale or use of your
implementation.  If the patents are only defensive or if you are writing
open source, then you might choose to go ahead no matter what you think
of the validity of the patents.  If by virtue of their owners, the
patents seem likely to be used for extortion or to enforce a monopoly,
then the bogosity of the patents and prior art are also irrelevant,
since a successful court battle would cost years and zillions of
dollars.  You also have noticed that court attacks on patents are
rarely successful.

At worst the notion that the IETF can do more than say "these IPR
claims are known" is a mechanism for people who claim to be spokesmen
for large communities to inflate themselves.  If the Open Source
Community were much more real than Jeff William's "INEGroup LLA. -
(Over 134k members/stakeholders strong!)" and able to work with the
IETF to fix the patent mess, then it could fix the patent mess without
help from the debating society that is the IETF.  The power and the
glory of the IETF is that it is literally just a debating society.

In that supposedly monolitic Open Source Community, users, particularly
redistributors and packagers, have far more compelling reasons than
authors of open source to care about patents.  The calls for the IETF
and open source authors to get involved in patent fights can be seen
as efforts by politicians and redistributors of our work to shift even
more of the burden of making their profits and reputations to us.

Vernon Schryver    [email-masked]