On 04 Aug 2010, at 16:06, Kevan Hashemi wrote:
Steven D'Aprano wrote:
He can say whatever he likes, but until infringement is either proven in court or admitted
I'm with you on that count.
Patent validity and infringement are not objective measures. They are subjective assessments (just like copyright infringement in many cases, for that matter), and often depend on which judge (and in the US: which jury) you have. That's the reason why so many patent infringement lawsuits are filed in the District Court for the Eastern District of Texas, because it turned out to be generally partial to patent holders.
Combined with the fact that patent lawsuits cost insane amounts of money, whether or not you actually even infringe a patent (let alone whether or not it is valid) doesn't even matter in most cases. Sun Microsystems found that out first hand from IBM in the early 80s: http://www.forbes.com/asap/2002/0624/044.html
This means that generic patent threats (such as those made by Ballmer) are actually much worse than "project A infringes patents X, Y and Z" statements, because in the latter case you can at least attempt to work around them. They cause FUD (fear, uncertainty and doubt), just like the patent deal between Microsoft and Novell.
Therefore I stand by my original points that a) Microsoft paying a Mono developer $5,000 in no way demonstrates their alleged acceptance of open source or free software. That action fits perfectly into their patent FUD game (open source software whose usage you can license from Microsoft is good, and they'll even support its development) b) most software probably infringes on at least a couple of software patents out there (ones that will be held valid by at least one judge/ jury somewhere if they would be tried; besides, as long as a regular patent is not explicitly invalidated, it is assumed to be valid by virtue of having passed the examination process)
Your patent must specify some process or technology that clearly took some effort to figure out. You can't simply jump to be the first person to patent something obvious.
Non-obviousness (and in general: patentability) is entirely unrelated to effort. Non-obviousness also doesn't mean the same as it does in common conversation. In general, many things that are new in some (small) way qualify, because of the reasonings that a) if it were that obvious, then it would have been published or patented already b) now that you see it described, it may seem obvious, but hindsight is 20/20. You have to consider whether or not it was obvious assuming you did not read this yet
Especially because of b), obviousness is considered in a quite narrow way by patent examiners (and judges and juries) when assessing patent validity. There are some methods that may help (see e.g. http://en.wikipedia.org/wiki/Inventive_step_and_non-obviousness) , but in general the non-obviousness barrier is quite low. As the UK's Chartered Institute of Patent Attorneys nicely puts it (http://www.cipa.org.uk/pages/advice-patents ):
"So, unless the feature that makes your invention “new”, compared with what has gone before, is utterly trivial, then it is usually best for you to assume that it does involve an inventive step."
("inventive step" is the European equivalent to the US "non- obviousness" requirement in patent law)
Jonas