Don Marti

Sun 17 Apr 2005 08:33:51 PM PDT

Software patents and Technorati tags

There's a pro-software- use of Technorati tags in this posting by J. Matthew Buchanan. Beware. It's a way to help lawyers, and hurt other people who actually want to do work with software.

(Update: I'm not promoting storing prior art away, since unpublished prior art doesn't count. I'm just saying that making it searchable by patent number does more harm than good, because software patents are a bad idea. Publish in a way that maximizes your work's usefulness to other developers but minimizes its usefulness to patent bandits. And there's nothing in this article that advocates infringing software patents or otherwise taking a legal risk, either. When free software developers infringe a software patent with possible network effects -- such as a compression patent -- they're participating in a free sample program that can benefit the patent holder.)

If you want to mitigate the harm of software patents, tagging or organizing prior art as such is a bad idea. Making prior art easily searchable just makes it easier for a patent bandit to cite and patent around your publication. A searchable database of prior art in an area also threatens to increase the "quality" of patents in that area. If it's not feasible to search for prior art, potential buyers of those patents will take into account that most of them will turn out to be indefensible, and drive the price down.

Keep prior art where it's possible to dig up and use against a problem patent when necessary, not where it helps bandits build more patents. Tim O'Reilly writes about his prior art for the 1-click patent, "I still have it on my bookshelf, in the odd event that Amazon loses its senses and sues anyone else over 1-click." As long as the prior art sits on Tim's bookshelf, or in the middle of somebody's stack of old magazines, it will be difficult for a future patenteer to innovate around.

By all means publish to establish prior art, but don't publicly "bust" a patent until the other side has wasted a bunch of money on it and actually files an infringement suit.

The problem with software patents isn't prior art or invalid patents. As long as there are software patents at all, it's better that the majority are invalid.

Tags: USPTO Patents generally patents