Robert Newson wrote:
> Rex Ballard wrote:
> > Roy Schestowitz wrote:
> >>Microsoft Deems Emotiflags Patent-Worthy
> >>,----[ Quote ]
> >>| Microsoft said you could count on them to improve patent quality.
> >
> > Sounds like they are out to patent every software "device" created
> > since 1977 that hasn't already been patented - because the Patent
> > office doesn't have record of it's prior existence.
>
> How would a counter claim of suing for copyright infringement go down when
> one of these "device"'s proper creator finds MS (or any of the other
> Software Patenters) has nicked their idea[, and the patent holder tries to
> assert their patent]?
Nullification is easy. All you have to do is prove prior invention, or
that the same technology was intuitively derived.
The second challenge is proving that the original applicant had seen
the original disclosures and/or inventions. This is very hard with GPL
software, since there are no requirements to acknowledge receipt of the
disclosure. When I sent my software to Microsoft in 1983, I used
certified/registered mail and had every page stamped with the
registration number.
Lacking such proof, it becomes necessary to get court ordered
disclosures of all documents related to the secondary invention.
If you can't prove that the secondary inventor used the information
from the prior disclosure to create their version, it could be argued
that they intuitively derived it, which means that the invention would
be permanently nullified.
This is why so many companies file so many thousands of defensive
patent applications. Filing the application is no guarantee that the
patent will be enforcible, but it almost certainly guarantees that no
one else can enforce a patent against the applicant, so long as they
keep an accurate record of what was, and was not, known by the inventor
at the time.
At the very minimum, the worst that can happen is that someone will
attempt to sue them for patent infringement and they will be able to
nullify both patents.
Ironically, the bigger risk comes in trying to enforce the patent. In
this case, if many collections have been made from many companies on
the basis of what is exposed to be a fraudulent patent claim, or a
nullified patent, the plaintiff could be sued, and the inventor could
even be charged with criminal fraud. At minimum, it would completely
ruin their credibility in future patent suits.
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