Breakfast with a presidential candidate

bmcculley at rcn.com bmcculley at rcn.com
Tue Jan 6 10:49:45 EST 2004



---- Original message ----
>On 06 Jan 2004 09:38:38, Bruce Dawson wrote: 
>>On Mon, 2004-01-05 at 22:07, Mark Komarinski wrote:
>> Copyright extension overhaul, more money to PTO to do real
research on
>> upcoming patents, remove patents on software, and repeal
that stupid DMCA.
>
>Excellent ideas. But he's interested in helping industry, and the
>general perception is that these things are good. I know why
software
>patents are bad, and why parts of the DMCA are bad. So I'll
need more
>than a few minutes of his time to explain this.
>
Software patents are the tip of the iceberg.  Take a few
moments to familiarize yourself with some current practices in
the area of "business process patents", and IP legal
extortion.  Some of the patents on virtual business processes
seem very close to patenting "a process wherein paper
representing arbitrary value is exchanged for goods" in other
words pay me a royalty whenever you use cash.  PTO grants
patents almost that absurd, expecting the courts to sort
things out when they're challenged, but the patent holder then
goes after Mom and Pop and small business that can't afford
the court costs, collects and either cashes out by walking
away when somebody finally stands up to them, or uses the
revenue from the small fry to pay the court (collection) costs
if somebody contests.  It's gotten way out of hand because of
the virtualization of virtually everything.

Real issue is leveling the playing field, so small business
can continue (or start?) to thrive and prosper.  Small
business and individuals generate most of the new wealth,
allowing larger businesses to rip off the results is bad
fiscal and social policy.  

There might be an interesting opportunity for a distinctive
proposal here = loser pays has been suggested as a tort reform
but maybe applying it to IP law would be a useful antidote to
abusive patents.  In a patent contest, if the patent is
invalidated make the holder of the invalidated patent liable
for the costs of defending any infringement action they initiated.

I like the loser pays tort reform, but politically it's dead
meat, however limiting it to IP cases might make it
acceptable.  It would at least be a proposal that would have
value and seems to have little downside for a serious candidate.

Anyone care to comment?

-Bruce McCulley



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