more on Wi-Fi standards face patent threat

[David Farber <dave () farber net>]

Begin forwarded message:

From: Kent Quirk <kent_quirk () cognitoy com>
Date: December 1, 2006 12:23:30 AM EST
To: dave () farber net
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 () gmail com>
> Date: November 30, 2006 11:19:31 AM EST
> To: dave () farber net
> 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 () farber net> wrote:
>
> Begin forwarded message:
>
> From: George Margolin <inventor () rentaninventor com>
> Date: November 29, 2006 11:02:19 PM EST
> To: dave () farber net
> Cc: "'Ronald J Riley'" <RJR () PIAUSA org>
> Subject: RE: [IP] more on Wi-Fi standards face patent threat
> Reply-To: inventor () pobox com
>
> Dave -- if Mr. Poulsen actually IS a "Senior Engineer and Partner at
> a Start
> Up company" -- I would STRONGLY recommend NOT investing in that  
> company
> because 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 the
> NOT knowing when his company will be in trouble by blindly STEALING  
> the
> creative 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 () farber net]
> Sent: Wednesday, November 29, 2006 10:09 AM
> To: ip () v2 listbox com
> Subject: [IP] more on Wi-Fi standards face patent threat
>
>
>
> Begin forwarded message:
>
> From: Lars Poulsen < lpoulsen () afar net>
> Date: November 29, 2006 12:16:10 PM EST
> To: dewayne () warp-speed com, dave () farber net
> 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



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