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Legal:Prior Art: Difference between revisions
→Challenges and Criticisms
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* We need the tools to facilitate community participation of the sort we have today and today we have in open source something that merits protection and that may overcome resistance to participating in an enterprise that appears to legitimize software patents (big problem for SPI, which had a number of corporate backers). | * We need the tools to facilitate community participation of the sort we have today and today we have in open source something that merits protection and that may overcome resistance to participating in an enterprise that appears to legitimize software patents (big problem for SPI, which had a number of corporate backers). | ||
* An alternative would be a rapid response system that would react only to clear threats, such as pending litigation. | * An alternative would be a rapid response system that would react only to clear threats, such as pending litigation. | ||
* Another alternative would be decentralized disclosure: training developers to publish articles and source code so as to make them useful as prior art references, but in a variety of journals and repositories. | |||
* Richard Stallman, in [http://www.gnu.org/philosophy/trivial-patent.html Anatomy of a Trivial Patent], writes, "What's more, the courts are reluctant to overrule the Patent Office, so there is a better chance of getting a patent overturned if you can show a court prior art that the Patent Office did not consider. If the courts are willing to entertain a higher standard in judging unobviousness, it helps to save the prior art for them. Thus, the proposals to "make the system work better" by providing the Patent Office with a better database of prior art could instead make things worse." | * Richard Stallman, in [http://www.gnu.org/philosophy/trivial-patent.html Anatomy of a Trivial Patent], writes, "What's more, the courts are reluctant to overrule the Patent Office, so there is a better chance of getting a patent overturned if you can show a court prior art that the Patent Office did not consider. If the courts are willing to entertain a higher standard in judging unobviousness, it helps to save the prior art for them. Thus, the proposals to "make the system work better" by providing the Patent Office with a better database of prior art could instead make things worse." | ||
* By helping applicants write claims to avoid prior art, a prior art database would reduce the average cost of a valid patent. Since most new patents are not licensed for free software use, a prior art database could increase the total patent threat to free software. | * By helping applicants write claims to avoid prior art, a prior art database would reduce the average cost of a valid patent. Since most new patents are not licensed for free software use, a prior art database could increase the total patent threat to free software. | ||