🚀 go-pugleaf

In article <1992Apr23.001851.10636@algor2.algorists.com> jeffrey@algor2.algorists.com (Jeffrey Kegler) writes:


   My understanding (I am not a lawyer) is that if you simply wish to
   defend against patents, you clearly establish prior art, and this will
   invalidate any attempts to patent your invention.  It's a lot cheaper,
   too.

It's important to understand that this is true in theory, but not
necessarily in practice. The PTO's definition of prior art is strongly
biased towards "previously issued patents". This is no surprise: the
patent database is what they know. It's well-indexed, organized the
way the PTO wants it to be, and the model works OK in fields where
most important advances are patented.

It is, however, a major problem in a field where things traditionally
weren't patented, and published prior art is more likely to be found
in a conference article or technical manual.

This among other reasons, causes the patent office to screw up.  When
coupled with the statutory presumption of validity, which essentially
directs the courts to start by assuming that the PTO didn't screw up,
it has proven harder than one might hope for to invalidate SW patents
based on prior art.

One result of this is that some large companies, which used to publish
"technical journals" specifically to disclose inventions which they
didn't want someone else to patent later, are becoming much more
inclined to file the patents instead, both to provide ammunition for
cross-licensing agreements, and because disclosing things in journals
doesn't seem to work very well any more.

John Wroclawski
jtw@lcs.mit.edu