Anything Under the Sun Made By Man: A Bad Take on the Software Patent Issue

This post on Don Marti’s blog is rather interesting. Mr. Marti, a member of the Silicon Valley Linux Users Group, proposes that all prior art be stored away until someone attempts to enforce a software patent (and spends a bunch of money doing so). Then, all the prior art will be dusted off and shown the light of day in a countersuit of invalidity. This is in stark contrast with Matt Buchanan's post suggesting the opposite.

The reason for Mr. Marti’s action is to undermine every single software patent that is asserted against someone else.

While this strategy is intellectually interesting, it does have a couple flaws.

First off, the underlying premise of Mr. Marti’s post is that everything should be done to assist an infringer against a patent suit. This stance appears to be regardless if the infringer was right or wrong in the infringement. Whether or not one thinks that the laws are right or wrong, part of our society relies on everyone being held accountable to the law. If you don’t like a particular law, you should write your congressman, not suggest anarchy and rebellion as a solution. I suppose that changing your citizenship is another alternative.

The second issue is that the strategy has a good likelihood of backfiring. Mr. Marti suggests writing down every idea possible and storing the idea away, out of the public view, so that it can be exposed near the end of a trial so that the evil patent owner slinks out of the courtroom with his tail between his legs. In general, a prior art reference must be published in a searchable manner for it to be a good reference. If two people invent the same thing, but the first one puts it on the shelf and the second one files for a patent, even if the patent was filed much later, the first one’s invention cannot be held against the second because the first one did not make it known.

Mr. Marti may be better served by publishing all ideas, as suggested by Matt Buchanan, rather than hiding them. This can be done through defensive publication.

Posted by krajec on January 17, 2005 03:46 PM to Anything Under the Sun Made By Man
Copyright 2005, Russell Krajec. All Rights Reserved.