Importance of trademarks (was RE: [OT] What is Open Source?....)

[Stephen J. Turnbull]

>>>>> "Nick" == Nick Arnett <narnett at mccmedia.com> writes:

    Nick> The main reason patents don't work for software is that the
    Nick> length of protection is too long in most cases, so that by
    Nick> the time software patents expire, the technology is often
    Nick> worthless.

I don't think reducing term would help as much as you might hope.
There are two problems.  First is that in most cases of patented
software, clean-room reimplementation is trivial simply from seeing
the results.  In practice, they fail the non-obvious test (the PTO's
definition of "non-obvious" is itself non-obvious to sane people,
beware!), and distressingly often, the no-prior-art test.  This
reduces the set of genuinely patentable software enough that one
wonders if it's worth bothering at all.

Second, the transactions costs (for example, finding out there is a
patent, determining that you need to license it, and negotiating the
license) are far too high compared to the cost of development.  So
this means that in most cases it is _impossible_ to strike a sensible
balance between providing incentive for original development of
genuinely patentable software and reducing monopoly losses simply by
adjusting the term of the patent.

And the lack of a "clean-room" defense creates a chilling effect on
the whole industry because of the enormous cost of defending yourself
against accusations of infringement.


-- 
Institute of Policy and Planning Sciences     http://turnbull.sk.tsukuba.ac.jp
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              Don't ask how you can "do" free software business;
              ask what your business can "do for" free software.