What about situations where hardware and software should not be so separated to
encourage phased development. One example is most apple products, another is
measuring devices. (01)
Deborah MacPherson (02)
Sent from my iPhone (03)
On Oct 19, 2011, at 5:08 PM, Edward Barkmeyer <edward.barkmeyer@xxxxxxxx> wrote: (04)
> Kristof Van Tomme wrote:
>> 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.
> Yes. This is one aspect of the problem -- the pace of technological
> advance. The lifetime of an innovative technology, as the lead
> technology for cost or effectiveness in some area, is now in the 10-20
> year range. The lifetime of an innovative application may be less than
> 5 years overall, and most will be re-engineered into competitive
> products in 2 years. This problem is not restricted to software,
> software tends now to be part of all the products that use innovative
>> 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.
> This touches on the other aspect of software -- it has essentially no
> production cost. There is no need to finance and build, or retool, a
> plant to make the product. Further, the industry has a tradition of
> irresponsibility that sees no need for warranty, and thus no need for
> the delays produced by verification and field testing. One does not
> need the patent protection to afford time to finance, time to test, and
> time to market.
> Given all that, and the fact that, like other smart startups, a major
> player in the industry will either buy you out or compete with advantage
> in 2 years (their time to study the market and either re-engineer or
> acquire the established name), what is a good lifetime for a software
>> Strong competition will not stop companies from investing in them,
> Yes, by re-engineering to bypass the patent, or outright acquisition of
> the patent along with the patent holder.
>> in such markets protecting
>> inventions is against the best interest of the public, they are a tax
>> on innovation.
> I disagree. The innovator at least needs the patent to make the
> acquisition of his company an alternative. The patent, and perhaps the
> market name, if it has been achieved, is the value in the company. That
> alternative is a viable strategy for would-be competitors, and the more
> foreseeable competitors who might try to adopt it, the more interesting
> that strategy becomes to each of them. (A few years ago, when a
> colleague sold his 7-year-old company to a major software firm and
> pocketed 40M$, I told him his hard work had paid off. His response was:
> "Finally. It sure as hell didn't pay off while I was running the
> company.") So, I really think patent protection has value to the
> inventor, even in cheap apps for large markets. The only difference is
> in the monetary value of the patent.
> The problem is to make the patent lifetime long enough that competitors
> must acquire, license, or re-engineer, rather than just waiting it out,
> and thus grant the inventor some fruits of his labor, but not so long as
> to lock up an entire technology over its probable lifetime, and thus
> discourage further related innovation. And that is becoming a fine line.
> In the mechanical and electrical fields, the adjustment has been in
> interpreting the scope of patents more narrowly, and discarding broad
> patents with ill-defined mechanisms. We may hope that that will begin
> happening in the software field, as the patent process becomes common,
> and the need for careful interpretation evolves. The USPTO has limited
> staff, and limited expertise, and this is a relatively new area. We are
> all recovering from 50 years of gold rush; it will take a while for
> order to set in.
>> That is why I don't see the arrival of these engineering best
>> practices as something that should cause celebration.
> Well, we disagree. The computer-controlled power-steering in my car
> does not come with a warranty that says that if it fails and runs off a
> cliff, we only promise to replace it with the latest update, if that.
> But that is because the software in my car was built under an
> engineering contract that makes the software supplier liable for the
> expenses of a recall to fix a software problem, which in turn caused the
> software supplier to adopt engineering practices, in order to avoid
> potentially devastating downstream cost. Similar behavior is observed
> in the development of avionics software that controls automated takeoff
> and landing of commercial aircraft. And yes, all of that software is
> patented, although as part of the mechanism of the overall device patent
> in most cases. Yet we routinely trust vital business information to
> software built with no such engineering practices, and we only hope that
> our competitors do the same. That is the situation I hope will change.
> Patent is a valuable part of the engineering process, because it affords
> the opportunity for recovering the cost of properly executing that process.
>> I'm not saying that you should not get patents yourself, in the
>> current system that's probably your only option.
>>> 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.
>>> 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."
> 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."
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