A patent not even a lawyer would love
Filed under: patentsI was researching versioning filesystems and came across Tux2, which eventually led me to a discussion on LKML with this tidbit:
Lawyers built the patent system. Tim O'Rielly once asked a patent lawyer how he would feel if other lawyers could patent legal arguments and charge him money to use those arguments in court. Though he tried to twist out of answering that one, eventually he had to admit that he had no answer. This lawyer IIRC is the director of the U.S. Trade and Patent office.
—Daniel Phillips
I think that legal arguments are not too different from any other "business process" (i.e. Amazon's infamous "one-click checkout"), so this argument has a lot of validity.
EDIT: I managed to find a link to the discussion referenced. The lawyer (Patent Office Director Q. Todd Dickinson) wasn't nearly as befuddled as Daniel seems to recall, although he didn't really address the question adequately (or more importantly, the potential problems such a system would allow).
Tim's final point was the most interesting one: "I really feel like the burden of proof is on the defendant" , to which Dickinson answers (roughly): "Not my problem."
If patent law was anything like other law, you would have to prove that nobody else has prior art, before you get your patent. Not sure if this would be a good thing or not...
But the guy seems to fundamentally misconceive how the Internet works. "It's just like the telegraph!" Yes - but you can't re-invent the telegraph in an afternoon. You can do that with the web, and we don't have time to have you and your lawyers pore over it and tell us it's OK.
Sometimes I think the best argument for formal software would the ability to totally automate away Dickinson and his buddies when it comes to software patents... the drag effect wouldn't be nearly so onerous then.