I'm working with open source software but in a previous life I
graduated as a bio-engineer and for a short period I even worked as a
technology manager for an academic innovation cluster. You are right
though that I'm fortunate enough that my comment is not supported by
experience. (01)
Years of willful infringement from the launch of your product is not
the same as infringement a few weeks/months after a cease or desist
letter (or maybe you could even stop selling products when you receive
that letter and never be accountable for willful infringement). That
is why, if you read patent applications related to your profession, I
would be careful not to leave a public trail that can be used to prove
you did. (02)
Patents started as a system that encouraged the sharing of trade
secrets so that they could sooner belong to the public domain. In
exchange, governments granted a monopoly which length was only a
fraction in the lifecycle of that technology. Today patents have
evolved into a system that protects vested interests for a
considerable part of the lifetime of these technologies. (03)
I believe that inventions that are easily reverse engineered should
not be protectable, especially in markets that are so big and that
require comparatively low investment costs. Strong competition will
not stop companies from investing in them, in such markets protecting
inventions is against the best interest of the public, they are a tax
on innovation. (04)
That is why I don't see the arrival of these engineering best
practices as something that should cause celebration. (05)
I'm not saying that you should not get patents yourself, in the
current system that's probably your only option. (06)
cheers,
Kristof (07)
> Kristof Van Tomme wrote:
>> If you are in this field and you might be doing things that infringe
>> on this patent, I would advise you to not read any of this or at least
>> not comment on it, unless you have the money and reason to dispute the
>> validity of these patents. In the other case, if you ever get
>> prosecuted it will save you a lot of money if you didn't know about
>> the exact claims that have been granted.
>>
>
> I would be surprised to find that this advice is supported by
> experience. In most engineering activities, the engineer or his/her
> staff is expected to do a patent search before committing a design to
> production. The purpose of the search is to protect the company from
> potential patent infringement claims after committing significant monies
> to production and marketing. The whole idea is that one can determine
> whether the central features of the design are patented by others, thus
> negating all value in the design, and whether there are 'touching
> patents' whose potential claims can be avoided by making minor
> modifications to the design. In patent infringement cases, ignorance of
> prior patent is /not/ a defense, unless the domain and function of the
> patent was described in terminology that was not readily recognizeable
> as the same as the domain and function of the claimed infringement.
> (This latter is more of an international patent issue, in that it arises
> from language translations and inconsistencies in terminology across
> national boundaries, notably British terminology vs. American
> terminology. But it also arises across specialized discipline areas,
> like pharmaceuticals vs. chemical agricultural products.) Standard
> practice is to do the patent search. If you didn't do the patent
> search, you are liable. You can only be excused if a reasonable search
> might not have identified the patent as relevant, and even that doesn't
> free you from future liability. (That is why they send 'cease and
> desist' letters -- if you were ignorant, now you aren't.)
>
> I repeat what is becoming a mantra: Knowledge engineering and software
> engineering are engineering disciplines, and they are finally becoming
> exposed to the expected behaviors in good engineering practice.
>
> -Ed
>
> --
> Edward J. Barkmeyer Email: edbark@xxxxxxxx
> National Institute of Standards & Technology
> Manufacturing Systems Integration Division
> 100 Bureau Drive, Stop 8263 Tel: +1 301-975-3528
> Gaithersburg, MD 20899-8263 Cel: +1 240-672-5800
>
> "The opinions expressed above do not reflect consensus of NIST,
> and have not been reviewed by any Government authority."
> (08)
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