The IP Lawyers Strike Back 198
dashNine writes "The National Law Journal has a hagiographic article on big-money patent lawyers. The article begins with a worshipful (if brief) description of Amazon's patent infringement claim against bn.com, and excoriates Wired for not patenting the concept of a "click-through" banner ad. It then ventures into the territory of patent consultants and counsel, discussing their tactics and methods for finding what they consider to be patentable IP. (Favorite quote: "[O]ne of the most difficult tasks in ... intellectual property asset management is to get the engineers and lawyers talking to one another." " Wow. I think the people who are involved in this article must come from a different Universe than I do.
*laugh* (Score:3)
Re:*laugh* (Score:2)
I got the IP thing right, but I was shocked to discover the article was *FOR* it in cases like this. Dumb kids, never even patented the lemonade stand.
What's next? (Score:2)
dear victoria! ... (Score:2)
kudos victoria (the author).
Business Magazines (Score:1)
Sounds like nobles and serfs. (Score:4)
Looking at it from their point of view (Score:3)
Bit confused, isn't it? (Score:2)
Bit of a confusion or contradiction, isn't it?
Re:*laugh* (Score:1)
Press Release (Score:1)
Them lawyers sure do have a sense of humor. There was a time when inventions had to be novel and non-obvious. A hyperlinked image that happens to contain an advertisement fits that requirement? Well, at least the rich are getting richer.
No doubt some lawyer folks would call Linus an idiot because he didn't set up a business where a bunch of laywers would be able to make a bunch of cash. It took RedHat to do that.
This is recockulous (Score:3)
From the article [lawnewsnetwork.com] :
A new breed of prospector has landed in California and every other technology epicenter to help companies discover their hidden treasures. Like their predecessors of the nineteenth century, they come from many walks of life. Many of them are lawyers.
What isn't mentioned in the article is that each time an IP prospector chooses to try a patent, it cost money. The cost of each atempt to lock up the obvious is passed needlessly along to the user .
_____________________________________
Before you slam lawyers in general (Score:4)
Lawyers are just like CS guys in a way: they want to be involved in important, meaningful projects. Suits like the etoy/Etoys thing are nowhere near important or meaningful. Get a bunch of lawyers in a room and ply them with drinks, and pretty soon you hear that they don't give a rip about things like this.
Now, y2k, on the other hand...that's bad news. They smack their lips greedily at our plight, because it's so incredibly easy to prove that the year 2000 was a foreseeable problem that we should have taken into account...
Quote from the article (Score:3)
See ? It's all about the money. And indeed, if it looks obvious to a normal person, it might not be obvious to a lawyer.
P.S. : at my company, they offer stock options instead of cash.
The problem in a nutshell (Score:1)
Seriously, though...
Somehow, patents have got out of hand. (obviously) For reasons of money, companies and lawyer are aggressively searching for anything and everything they 'own' (in some sense of the word) that might possibly be patentable. Patents were supposed to be on things that you truly created, and they were supposed to be so that you could share your ideas with others. Not make money by suing.
The whole thing stinks.
Different mindset (Score:5)
One of the most valuable things that engineers can do is talk to these lawyers in a calm, reasonable way and explain that the future of the software that created the Internet hinges on the assumption that the current patent mania will be stopped by a popular pressure on the USPTO. Change must come or too many of the inovations that the Open Source community NEEDS to impliment will be closed to us by software patents.
You must make it clear that they are not helping your company by acquiring patents that push the envelope of the USPTO's charter. They are, in fact introducing potential public-relations nightmares (like Amazon is now dealing with, and Unisys has been dealing with for years).
Also, encourage your company to create a "free for open source" licensing strategy for their patents. This will not help the GPL world, as the GPL forbids using patent-restricted processes, but the MIT/X and BSD licenses have no such restrictions and could benifit widely from such licensing. It would also help the company in question, as they could require the source to be commented in such a way as to indicate the owner of the patent, and anyone wanting to create a closed implimentation would know who to go to for a license.
Intellectual Property (Score:4)
In the past if a product was released it was perceived as the only way to do the task that was performedby that product. After the automobile technology and patent laws should have changed -- well technology changed but patent laws never did.
The problem now is that technology is rapidly accelerating, gaining ground on and in every field. Naturally people will take advantage to "cash out" - as in any time period, or society. The problem is that the American Justice System helps and hurts at the same time. It helps break up the monopolys that it helps create. So now it's the governments fault -- which isn't entirely true. Again, we don't live in a Utopian Society but let's not be lazy -- let's change patent law to reflect the times, not the 1890's.
I'm absolutely stunned. (Score:1)
Oh, I liked this bit too:
The "Au" in Aurigin and Aureka stands for the periodic symbol for gold. (And, yes, the company name and product name are puns for origin and eureka. Who said lawyers don't have senses of humor?)
No one ever said that. They just said lawyers don't have a GOOD sense of humor
On, a serious note, I'm not sure what this article means. Obviously it's intended for the law community, but the urging to patent business METHODS?!?! A business method is useless unless you can get a large number of people to adopt/accept it, and who's going to if they have to pay royalties? Is there a patent for a location where you can exchange goods for money, and leave via a door? Sigh. Well, I'm not saying anything we don't all already know. Perhaps I ought to follow up on my patent for exchanging computer knowledge and skills for currency.
And the winner is... (Score:4)
If the patent system keeps on running amok, it'll have to be reformed - and most of those patents will turn out to be worth the paper they're printed on, if that much. But the lawyers will survive even that fiasco quite well.
Ultimately, the idea that someone can own and control something simply because s/he thought of it is a pretty good definition of evil. The universe of techniques, procedures, and mechanisms that could make the world a better place is a bit like natural resources. Working day and night to use them up as fast as possible is just a way of stealing them from future generations. They won't look very kindly on this period, I think.
Open source, of course, is the solution.
This article IS from another world. (Score:2)
Hmm... well, maybe there's a REASON the 'bible of the Internet' and 'so many other' companies acted this way. Maybe they decided there were more important things to go after-- like, oh say, further innovation rather than legally resting on past accomplishments which have become trivialized by the pace of the Internet.
Rivette estimates that Wired lost at least $20 million a year by not seeking a patent on banner advertising.
And how much would the industry as a whole have lost? How many 'free' sites would not even have existed? A successfully defended patent on this concept may have majorly damaged the development of the web as we know it now.
Would Slashdot exist?
Worldwide patent licensing revenues rose from about $15 billion in 1990 to more than $100 billion in 1998, according to industry estimates. The growth is unlikely to abate.
Revenues to whom? The patent holding companies and lawyers? And what are the nature of the patents? Seems nowadays certain patents are like apples and oranges to each other. One might be a genuinely novel, distinguished invention and the other a nearly obvious idea.
Again, what does the growth of these revenues mean to the growth of the patent holders' industry itself?
There is a Californian, touchy-feely sense to the Gathering
Somehow, I think that this is diametrically opposed to the 'Californian, touchy-feely sense' that might be rephrased as idealism. I see this sense applied to open sharing of ideas, mutual benefit, onward and upward-- not exploitation, greed, and legal entrenchment which slows things in general.
Note that I'm not against one making money, making money for one's efforts-- I'm against doing so by standing in the way of everyone else.
Fox wants to make sure that H-P scientists and engineers tell him about what they are creating, so he can protect it legally and exploit it commercially. Sometimes it's a hard sell, says Fox. Inventors are often so accustomed to working every day on their projects that "it looks obvious to them."
Hmm... maybe that's not because the inventors have been staring at it everday, but because to other engineers and inventors IT REALLY IS OBVIOUS.
Steven Bochner of Palo Alto's Wilson Sonsini Goodrich & Rosati gave a speech in 1998 on the potential liabilities of boards of directors who are not minding the intellectual property store. "It is not unreasonable to look to the board and say, "How are you managing these assets?' " he says.
This is about the only thing I agree with in the entire article-- How are you managing these assets? How should you? Are you posting tollbooths in the intellectual stream, or are you truly innovating and moving forward faster than anyone else?
The former makes you immediate money. The latter makes you more money in the longer haul as your company benefits from further innovation and not entrenched battles, as well as the success of the industry as a whole.
I guess the only good thing about this article, at least, is that the lawyers are coming out in the open and being honest about their desires.
I think it's a matter of perception: (Score:1)
That is, they see themselves taking raw material (mountain with gold inside > engineer with ideas) and extracting something valuable with their hard labor. After all, isn't lawyering work, too?
Total lack of though (Score:1)
I don't see how any sort of legal or patent system can fail to see the goofiness of all of this. How can you patent something like a normal business process. Something so vague as "one-click shopping"...that's like a normal store patenting displaying merchandise in a window. And this article bashing wired for following the "info should be free" line of thought just shows how quickly the internet is being lost to the capitalists. While capitalism is alright in and of itself, its ideals don't really mesh all that nicely with the ideals that helped found the internet. It's interesting how in our current society and economy, information and money can sometimes go hand and hand, yet at the same time, be going head to head. I think it's silly to try and predict how this will turn out even 3 or 4 years from now, but I seriously don't like how things are looking.
Re:Looking at it from their point of view (Score:1)
Re:Looking at it from their point of view (Score:1)
" The software, introduced in 1997, is called Aureka. The "Au" in Aurigin and Aureka stands for the periodic symbol for gold. (And, yes, the company name and product name are puns for origin and eureka. Who said lawyers don't have senses of humor?)"
The periodic symbol for gold. That sums it up nicely.
Re:This explains it all! (Score:1)
Suits Me Fine (Score:2)
Re:This article IS from another world. (Score:1)
3M patented the Post-It Note and made a fortune. If they would have "open-sourced" it as you suggest, and allowed anybody and their brother to use the technology, do you really think the office supply industry would have benefitted "from further innovation and not entrenched battles" as you suggest? Do you think we would have had a sticky-note revolution?
Of course not. There are plenty of products out there that are indeed truly revolutionary, and that can't really be improved a whole heck of a lot. Banner ads are a perfect example.
Yes, Slashdot would have existed. Things similar to Slashdot existed for a long, long time - they were called local BBS's. We had this discussion here a while back. There will always be free forums for informed individuals to discuss ideas.
Maybe Geocities might not have come to fruition - but is that such a bad thing?
(Don't get me wrong - I loved the rest of your post!)
sour grapes (Score:1)
Re:Before you slam lawyers in general (Score:1)
But seriously, they did quite a bit. If you've applied for a business loan in the last two years, you've probably had to fill out y2k disclosures. They've worked hard with the SEC to get notifications. They've done a lot to make sure the public can get access to company information about y2k. (Of course, most of that info is BS, but what else can we do?)
Behaviour vs. Intent (Score:1)
Evil. (Score:1)
Patenting the obvious is against everything "innovation" stands for. You couldn't patent putting a link around an image, but suddenly a "click-through banner ad" is different? That's evil.
Or, you use cookies to save someone's information (including their credit card number) so that next time, when they come back, you know who they are. (sounds like Slashdot...) But now you call it "one-click shopping", and suddenly it's a new idea.
I know, I'll write up a patent on a system to keep track of people's inventions, but instead of a patent office, I'll call it "pure evil", and sue the USA and all other companies who use my system...
---
pb Reply or e-mail rather than vaguely moderate [152.7.41.11].
Re:This explains it all! (Score:1)
--
Re:Before you slam lawyers in general (Score:2)
The Real Problem (as I see it) (Score:4)
If you were congress, who would you fix it? I've been playing around with law wordings in my head that would keep companies from accomplishing the monopolization of important ideas and concepts. The problem I'm having is that every bill I come up with in my head would also cause someone who came up with a truly unique service from patenting it (which is, of course, contrary to the whole idea of the patent system).
So, assuming that we're not out to destroy the patent system completely (and I know there are people out there who'd like too, but I think that's unrealistic), how would you legislate to stop abuses while still letting the reasonable patents get through?
----
Re:Looking at it from their point of view (Score:1)
Seeing it's the lawyer's who make the law, then if there is a fault with the system, it is indeed the lawyer's fault.
quack
Re:Behaviour vs. Intent (Score:1)
I generaly don't buy into X or Y is 'evil'. There are very few people who are truly 'evil', in the sense thay they do stuff just to hurt others. To make the obligatory Microsoft reference : Bill Gates isn't evil, he's just trying to make more dollars for his shareholders, and for his own wife and kid. His intent is to make money, not surpress the helpless computer users. If he thought he could make more money by going open source, he would do it faster than you can say GPL, I'm sure.
If you really want evil, take a look at random acts of violence/vandalism, where there is absolutely no personal gain. That's what I define as 'evil'.
Striking Back With... GNU-like Patents? (Score:2)
I.e. Amazon couldn't use any patent in the patent pool without allowing free use of the one-click technology or, preferably, giving the patent to the group.
Teeces' 86 Article (Score:1)
Here are some other related links:
The Economics and Management of Technological [pace.edu]
MIT: Technology Strategy/Scott Stern [pace.edu]
Advances in Global High Technology [jaipress.com]
Technological Innovation and International Competitiveness [rdg.ac.uk]
IMD Discovery Events [www.imd.ch]
Related Misc.Books and Articles [ic.gc.ca]
OSLDF (Score:3)
The OSLDF can challenge patent assersions in court showing prior art in the standards and protocols and argue when an obvious implimentation of this prior art is needlesly patented.
The OSLDF can challenge patent prospectors to show there source code in order to show that there particular implementation is indeed unique and worthy of patent protection.
The OSLDF can fight for the small guy who doesn't have the means to launch a legal defence when his rights are violated under the GPL.
The OSLDF could grow as large as the ACLU is today, looking for landmark cases to protect the civil liberties of open source programers.
The OSLDF funding would be drawn (in the form of tax deductable donations) from the many users of open source. As Open source delevopment touches more and more industries and walks of life, the funding will also grow.
_____________________________________
Re:And the winner is... (Score:2)
That is what a patent is. It allows you to have sole, legal control over your idea.
The universe of techniques, procedures, and mechanisms that could make the world a better place is a bit like natural resources.
Not really. Most natural resources renew themseles slowly enough that if they aren't managed, you have a boom-and-bust cycle (ie, fish out the ocean, fishing is no longer profitable, fishermen do other things, fish population recovers, repeat). Intellectual resources, however, are infinitely renewable. You can't "use up" human creativity. This reminds me of the story of the Patent Office clerk who quit his job around 1900, because everything had already been invented.
Open source, of course, is the solution. ;) Why? Because it allows for others, now or in the future, to build on and improve our efforts now. And that's a pretty good definition of Good.
Ha! Patents are the solution, because they allow you to make a buck now, while insuring that your ideas are free to use later on down the road. If patent law didn't exist, no company would ever admit what it had developed, because they'd lose it immediately. As a result, most companies would be re-inventing the wheel, instead of making something useful. Imagine if all of the processes associated with semiconductors were to have been held as corporate secrets. What would the world look like? Who'd own a computer? Not you or me, bud. We might have one of those newfangled transistor radios if we had a month's pay to blow, but vaccuum tubes would be in most of 'em. Rotary phones, leaded gasoline, and kidney stone surgery (with a knife!). So, where's your Linux now?
Re:The Real Problem (as I see it) (Score:2)
1. Publish applications 12 months after filing to get more transparency into the process.
2. Tighten requirements for unobviosness.
3. Allow formal objections after publication of application.
4. Tighten law to close business model loophole. This was actually a provision in the law that was worked around via the process patent.
5. Specify in the new law that software is an expression not an implementation, thus not patentable.
1 anad 3 are in progress right now.
Re:Looking at it from their point of view (Score:1)
So if it's anyones fault, it's the legislative branch (and ultimately the voters, i.e. you).
Re:Total lack of though (Score:2)
The only place I can think of that the growth of the internet (pre-web) strayed from capitalism was that it was started under DARPA; and that depends on whether you consider the project a proper defense project. I don't know enough about that to have an opinion, yet. I do know that the internet is a good thing.
Also, one of the proper acts of gov't is 'to fix the Standard of Weights and Measures'. Internet Protocols, established under DARPA, could well fall into this category.
Of course today's Intellectual Property nonsense is like trying to patent the ruler or scale that implements that standard.
Does anyone expect them to say differently? (Score:2)
So software patents kill both birds with one stone. They get more places where they have to be the representative, and it stifles innovation along with it. Now I know they consider the first all the time, but the second is probably just in the subconcious.
Plus they don't understand or like free software in general. Here is something that my staff can only charge back labor for? That means I can't tack on a handling charge for parts/materials.
They aren't serving society in these cases.
Re:Different mindset (Score:5)
One of the things that we as a community misunderstand is that lawyers, evil Snidelies or not, are simply following the law and their code of ethics when they advise their clients of what is in the client's best interest. Among their clients are corporate executives who are required to act in the best interests of their shareholders.
If you sit down and calmly tell them, "don't do it, it's not in our best interest" then I hope what they do is calmly reply to you, "it is in our best interest." Let me [hyperspace topic jump] use an example from econ 101, one from the family of "the failures of the commons": traffic jams are bad, right? And yet traffic jams form because what is in one's personal interest is not in the best interests of the group. People are willing to add themselves to a clogged highway because it is still the fastest way for them to get to work at that moment. Yet, their personal time savings turns out to be less than the total time they add to everyone else's commute. It's called a negative externality. [hyperspace topic wormhole collapses... we are back] So, we as a community can be against these patents because of their negative externalities, but it is not feasible to convince individuals that it is not in their interest because patents simply are in their interest.
Sit down and calmly discuss it with your representative, with the PTO, with the judge... but the best way to convince an individual is probably to scream incoherently, to threaten, undermine, backstab and be otherwise civilly disobedient. Your reaction will need to be way out of proportion to change their equation.
Somehow our society at large needs to be shown that computers virtualize everything, and when the mouse click was invented, everything one could do with a mouseclick became obvious. Why isn't that obvious?
Re:Blackdowned (Score:1)
"Being Downsized"=Politicly Corect way of firing somebody.
I would like to offer a new term to the group.
"Getting Blackdowned"=Open Source developers being whiped from the face a project when it reaches a usefull stage.
Perhaps the OSLDF could have been able to help the blackdown group when they 'Got Blackdowned'.
_____________________________________
Re:Looking at it from their point of view (Score:1)
Causing bigger problems (Score:1)
So, software would fall under copyright laws, rather that patent laws? If so, you're opening up a whole new can of worms, since Congress has shown no hesitation whatsoever to extend the lifespans of copyrights. So, not only would some great software idea be unavaliable to you to use now, but it would be unavaliable forever, ala Mickey Mouse.
Patents & Freeware (Score:1)
Another Universe? (Score:2)
(Using Mozilla M12 and loving it.)
Zontar The Mindless,
Obvious to those skilled in the art... (Score:2)
One of the tests of patentability is that the technology not be obvious to those skilled in the art. "The art" here refers not to patent lawyering, but to the field of the invention. The juxtaposition in the above quote of "obvious" with "talking to lawyers" indicates confusion on this simple fact of law.
A technique being obvious to engineers skilled in the art of the invention in question is not the same as the technique being obvious to patent lawyers.
The problem, of course, is that patent law professionals, be they lawyers, judges or patent office bureaucrats, have an incentive to make everyone in the world go through them to do anything -- and they are in a position to do so if they can, in the guise of legal sophistication, get away with ignoring both law and common sense.
This is yet another example of the abuse of the rule of law by those entrusted to uphold it.
These people don't understand that they are attacking respect for the rule of law, and that respect for the rule of law is all that really stands between them having a nice townhouse in a peaceful society, and ending up as long pig.
Two Sides.... (Score:1)
Well, you can't have everything for free, indeed,
but why should one avoid a chance to have something
for gratis? On the other hand, is it necessary to
make money of everything? How big is the piece of
cake one can swallow without any risk? Someone
had a nice idea, moreof, he managed to implement
it, now these parasites come and tell him this is
a gold mine. But it's obvious, because this is a good idea and it works.
Int. Pat. can never stop `infrigment' or `piracy', so keep lawyers away. This world is _ours_.
Re:Looking at it from their point of view (Score:3)
Making money for the sake of makeing money is not a worthwhile pursuit. This culture has bought into that idea in a big way, but it is fundamentally broken.
If I was interested in cash only, I could quit what I am doing (grad studies) and take a US $150K/yr +stock job ( I don't mean this in an abstact sense, I mean I have the job offer on paper). If I was 'only interested in money' that is, of course, what I would do. However, there is no chance whatsoever that I will take this particular job, as I think that what they do is unethical. We all have these choices to make, in differing degrees.
Essentially what you are saying is that we should say 'don't be too hard on them for being unethical, they are just greedy' at least thats how it translates in my world view.
Now before I get some idiot jumping up and down and making damn-fool 'communism' etc. claims --- please note I am not saying that you shouldn't pursue a financially rewarding career. What I am saying is that financial rewards, in and of them selves are meaningless. If you are optimising for income, your priorities are inane. There is a big difference between making enough to be free to do things that are rewarding to you, and making as much as you can.
S.
The Deny-side economy in full bloom. (Score:1)
That seems to be their philosophy. Make sure to exploit any possible claim, not make sure that internal R&D funding is sustainable by fair claims and licensing of its results.
I don't think patenting was originally conceived to serve their kind of "prospecting."
Just a tiny correction... (Score:1)
Which, in english, means that if you have a patent, but you allow free use of *all* GPL'd software (your release plus any derivative works) that infringes that patent, then the GPL'd software infringing that patent is valid and the GPL is applicable.
At least, that's what it looks like to me. I don't think it disallows the use of patents against proprietary software, only against modifications of the original GPL software. The preamble (which has no legal standing) is much less clear; that's probably the source of confusion.
Re:Does anyone expect them to say differently? (Score:1)
First they made these rules so that no one in
his sane mind can understand them, now they charge
you big $$$ to represent you in the court.
The Universal Declaration of Human Rights states
that everyone has a right to be a person in front
of the law, now the law must be simple and effective
so we don't need anyone between us and the law
that is intedned to protect ourselves in a fair and
clean way. We need no intermediates between us and our law in this world of ours.
Re:Looking at it from their point of view (Score:2)
Actually that is not true. Most politicians in the legislative branch are in fact lawyers (even Bill Clinton is (was) a lawyer). I've heard a figure of 80% of the US house and senate are lawyers, but I can't say how accurate that is. The representative from my district is a doctor, however both of my state's senators are lawyers (or former lawyers).
Re:Behaviour vs. Intent (Score:1)
history... (Score:1)
Maybe they have a point! (Score:1)
Erratum (Score:1)
Re:Causing bigger problems (Score:2)
So, software would fall under copyright laws, rather that patent laws?
As if it isn't now? At least with a copyright, I can create an original work to accomplish the same thing, and there is no danger that my great project will get me sued (or be killed just as it's comming out) simply because someone else was just waiting for their hidden (pending) patent to be approved.
Also, I would add:
6. Reduce the longevity of a patent.
IP Irony (Score:2)
--
Re:*laugh* (Score:1)
Better yet, someone should patent the idea of IP law - then sue the patent system for infringing on their patent!
Just my $0.01 (its not even worth 2 cents)
Re:Press Release (Score:2)
I wonder how they'll feel about things if a submarine patent pops up and the owner demands that they stop selling and using that software?
Re:Different mindset (Score:1)
IP lawyers are unlikely to have anywhere near the level of specialized technical knowledge that a programmer or engineer working on a project has. Their knowledge is more superficial, but broader. It is up to the engineers to point out the obvious stuff, the prior art, etc. This is not much different from taking enough responsibility for your own health that you ask your doctor intelligent questions. It must be a collaborative effort.
Of course, I am preaching to the choir here. I think most of you reading this understand the damage that bad patents and a broken process have the potential to inflict. We are nowhere near being the majority of programmers in the world. A lawyer unfamilar with software and a programmer who treats that lawyer as a guru on IP law who is not to be questioned can still write bad patent applications. And the USPTO can't have experts in every field. If we want it fixed, we have to get out there and change it ourselves.
Re:HEMOS SUCKS (Score:1)
The phrase "EAT MY SHIT ZEALOTS" is a tradmark of my company, and we have patents on insulting people on the internet, and typing in all caps to annoy people.
No, "evil" is an appropriate word (Score:1)
Patents should protect implementations, not ideas, and in intellectual property (particularly source code), copyrights are usually a more effective means to the same end. The source code to a particular banner ad serving program can be copyrighted (legally protected) if its creator so chooses. The general idea of banner ads should not be. Legally freezing implementations doesn't stop progress; freezing ideas does.
Re:Behaviour vs. Intent (Score:1)
Patent process hijacked by the twits (Score:2)
The courts have failed to spot the "innovation" impostors and are largely responsible for the abuse of the intent of the patent laws. The Amazon "One Click" innovation is so obvious as to be laughable, but the notion that business model innovation is protectable under patent law is the big problem. The constitutionality of business model patents needs to be challenged.
Defeating the notion of software patents is a harder proposition. I suggest that the open source community start a web site devoted to finding prior art for claimed software patents. Using the Internet we could probably sink a lot of claims and make the notion of software patents so absurd as to make it vulnerable to a formal legal challenge. This is going to be a long struggle, I am afraid.
This IS Redundant! (Score:1)
Patents aren't evil in their own right. I have a few, but they are for real inventions and not simply applied mathematical formulae, something a copyright could best take care of.
Re:Different mindset (Score:2)
It should be, but often isn't, painfully obvious that one should keep a good distance between oneself and the cars in front. Besides this being safer, it is also legally advisable (IANAL) because a) it is the law, and b) the liability in a collision rarely falls upon the lead car (IIRC).
When this rule is followed it is safer, traffic moves faster because of less 'resistance' (like in electrical conductors), and the ability of oncoming traffic to easily merge relieves the congestion on those same surface streets that feed the it.
For more information see Bill Beaty's Amateur Science [amasci.com] site. Traffic simulations may be found there [amasci.com].
Re:Total lack of though (Score:1)
Not nuch to say... (Score:2)
I'm only half-joking. How can I say this? Well, consider: a very large part of what makes human beings what they are is the fact that humans have a complex ability to exchange ideas. This was first accomplished through language, and is not being spread to computers. Think about it: humans are individuals, but at the same time you could also say there's a collective consciousness as well in the various groups and cultures.
My point? Software is, at its heart, nothing but ideas. Ideas have never been intended to be patentable; even the US Patent Office doesn't allow for the patenting of ideas (they just need to get my previous point into their heads). There's a difference between source code and software; source code can be copyrighted, providing adequate protection for the work a company has done (not to mention the fact that copyrights are cheaper than patents and last longer too). It does this without stifling the flow of ideas which makes humanity what it is. Software patents do stifle this flow, and it's done without any real need (unless percieved from the point of a profiteering glutton, to borrow a phrase from The Mentor). It's more than possible to make money without patents; in fact I would be willing to bet that if all software patents were abolished right now, the revenues of the various software companies (those which actually write software instead of hoarding patents, at least) wouldn't change significantly.
Basically, to stifle the free flow of information is to stifle our humanity in a very real way. It's a shame that there are people who will do this just to make a buck. But they do exist, having forgotten that there are things more important than making ridiculous amounts of wealth (which is certainly nice and all, and I wouldn't mind doing it myself, but it's not the most important thing).
Re:The Real Problem (as I see it) (Score:2)
So, assuming that we're not out to destroy the patent system completely (and I know there are people out there who'd like too, but I think that's unrealistic), how would you legislate to stop abuses while still letting the reasonable patents get through?
You are asking the right questions. Here is my answer:
I wouldn't. The mechanisms to stop this nonsense are already in place, if we just get off our asses and do it.
Why has no one mentioned pre-publication? Pre-publication is the surest way --and pretty cheap-- to stop an impending patent cold in its tracks. And give the ammunition to those companies who must fight these silly patents.
You have an obvious algorithm that might have patent potential? You could:
patent it (and earn the ire of Slashdot).
or send a good writeup to Linux Today or IEEE Spectrum or wherever.
Disclose everything, including every possible application you can think of. That technology can no longer be patented; if a patent is later issued, you can send a friendly note to the USPTO requesting a review with a heads-up concerning where it was published. For one year after publication, the technology is in a sort of limbo; an unscrupulous person could potentially patent your technology and claim they invented it before it was published. (That is called "fraud" by the way and the USPTO takes a dim view of such activities.) After 1 year, though, your software/idea/algorithm is permanently in the public domain.
(Yes, there are some drawbacks to this, involving the patent laws in countries other than the U.S., which is NOT the subject of this article. Anyone abroad care to comment? Defensive publication is one of the tools used by U.S. corporations to protect themselves from "the obvious".)
Publish early, publish often.
I am getting pretty tired of seeing the U.S. patent system blasted across Slashdot. Our system ("first to invent"), IMHO beats the heck out of most of the rest of the world ("first to file") and is much more friendly to individual inventors than we give them credit for.
The source of these patent articles (Score:2)
I used to work for Aurigin. Since the company is very small, they can probably figure out who I am (hi guys). I respect their aggressiveness and their knowledge of the law enough to post anonymously, avoid revealing company secrets, and saying anything too defamatory. This doesn't mean I agree with their opinions. (If they and their product were more public I would be posting something much different.) What I can do for you guys is distill their rather confusing public information.
Aurigin Systems' main product is a IP management and tracking system called Aureka. Aureka is a very expensive client-server system for companies in industries that have so many patents that the industry players have trouble keeping track of them all. How expensive? In the past this system has been sold in-person (aka "direct sales"). If you've read "Crossing the Chasm", you'll know "direct sales" means the product is worth at least $50,000 because supporting a sales staff that flies around the world to sell your stuff is expensive.
I emphasize the "at least". The Aureka "value proposition" (why it's worth your time, money, and effort) gives you another hint at how much this system might cost. Patent lawsuits have averaged in the millions. Each patent costs around $100,000 in lawyer's and patent office fees to prosecute (that is, to push though the patent office). If you're a company with hundreds of patents, and patent-savvy competitors, you could save millions just by not going for useless or redundant patents. An avoided lawsuit could save you an entire business market. A successful lawsuit could make you hundreds of millions. It doesn't take a genius to see that spending a chunk of cash to make you smarter about your industry's patents will pay off in the millions. This system will make you smarter about your industry's patents. So it's pretty safe to deduce that this system is a little more than $50,000.
How do you get someone to shell out this kind of cash? Who would shell out this kind of cash? I'm beginning to skate on thinner ice because this is getting into Aurigin strategy, but let's see if we can work through this based on what everyone knows.
The "who would buy this" part is kinda obvious: executives who are interested in making their bottom lines prettier and their shareholders happy. The "how to sell this" part is a little trickier. How do you convince these executives to buy? You convince them of the "value proposition," that it'll pay off. How do you do that?
Well, you can tell how Aurigin's doing it by what you've seen on /.. You write articles in magazines that these executives read like Upside and law journals (BTW I sincerely doubt this article was written by anyone but the Aurigin marketting department, or Kevin Rivette himself.), you write a book ("Rembrandts in the Attic"), and you throw conferences, all with the same message: if you're dumb about patents you will waste time and money on useless patents and get sued. If you're smart, you make millions on lawsuits and save operational costs. And oh by the way, here's a software package that helps you be smart about patents.
So now you see why all these articles seem like they're coming from a different world. They are. These articles are trying to convince Fortune 500 executives that they'll get reamed by their competition unless they get smart about how they wield their patents.
PS I lived with patents for years (it was my job to understand them), so here's my two cents about the /. debates on patents: There's no point arguing about patents if you don't understand patent history, patent theory, and patent law. You just sound stupid when you do. Patents are monopolies. They're supposed to be. I think a lot of people have a problem with that but have trouble admitting it. And this business environment is nothing new. In the early part of the century, there were patent wars over automobiles. There has been a lot of ugly wars over telecom patents. Any time there are patents and new lucrative technologies they'll be companies trying to patent everything in sight because patents help the bottom line, and that's all companies care about.
Arguing about patent theory and efficacy, however...
Re:This explains it all! (Score:1)
_____________________________________
Re:Behaviour vs. Intent (Score:1)
"The road to hell is paved with good intentions."
I've tried. (Score:1)
Steven Rostedt
Re:The Real Problem (as I see it) (Score:1)
1) Establish a method other than the courts (something akin to arbitration) for determining whether an idea is novel enough and unique enough for patenting, where all parties expressing a concern have input.
2) Shorten the duration of patent protections (copyrights too).
3) Establish that patents must be truly *novel*, not simply a logical extension of current practice that your average person in the field would come up with after an afternoon's thinking, nor the use of a known technique with a new technology.
Offtopic - Tragedy of Commons (Score:2)
allow me (Score:2)
Re:Looking at it from their point of view (Score:2)
Aside from the fact that most legislators are lawyers (as others have pointed out), you must consider the role that the judicial branch's interpretation of the legislature's words plays in determining the 'de facto' law. It is a judge that will determine the outcome of the eToys/etoy case, and of the Amazon case. Whatever decision is made, these will set precedents that can be used in arguing future cases. If the judiciary demonstrates willingness to support patents like Amazon's, we'll likely see a whole new flurry of absurd patents. If eToys loses against etoy, large companies with deep pockets will be a little less prone to push around smaller organizations or individuals.
In theory, the US is more or less governed by and for the people. In practice, the judicial branch's task of interpretation can lend a distinctly authoritarian tint to law as it exists in practice (i.e. as an influence on the behavior of people and corporations, rather than as words on paper).
If you want to see other examples of the judicial branch being used to undermine the democratic ideal, look at the current fad of lawsuits against gun manufacturers. In the US, the second amendment grants a right to firearms ownership. The constitution also clearly lays out a mechanism by which this amendment could be repealed, a mechanism which is heavily democratic in nature. However, if a precedent is set allowing gun manufacturers to be sued, held responsible, and made to pay damages for shootings, it will eventually become impossible for these manufacturers to sell to the civilian market. At this point, it will be effectively impossible for a civilian to buy a firearm, even if there is no law on the books explicitly preventing him from doing so.
(Please note that I'm well aware that the US is a republic, not a democracy. I'm using the term 'democratic' in a more generic sense, to mean a government in which the common man has some say, even if not direct.)
Bah Humbug. (Score:2)
The fact of the matter is that it takes all types to make this world go round. In other words, We need garbage men, but we also need lawyers too. It is no wiser to be an (ignorant) layman and snub lawyers, than it is to be affluent and snub garbage men.
Merry Xmass.
Re:Striking Back With... GNU-like Patents? (Score:2)
However, I think it's ultimately the Wrong Way to fix it. The troubles are:
1) How do you keep the group honest? Maybe RMS being leader would last for the rest of his life, but what about after that? What happens when you've got potentially a multi-billion dollar patent reserve? People such as these IP lawyers will attempt to bribe the people holding power in the organization and possibly resort to assassination. That is, like how the nice communists were all killed and replaced by mean exploiters of the power structure created after the Bolshevik Revolution in Russia.
2) The patent process is fairly expensive and tedious. Where does the money come from? How do you get investors in something that is guaranteed a 0% return?
3) How do you decide what to patent? The problem is that these things "look obvious". Sure, hindsight is 20/20, and you know what obvious thing someone has patented -yesterday-, but then you have to violate a patent, get sued (presumably paying lawyers the whole time), and only then get the original obvious patent invalidated.
4) There is no protection from patent squatters. Say Unisys has a patent on LZW, but wants to release a product that uses the GNU patented readline. They could just go ahead and sell a that patent to a squatter group (let's say Gold Digger Associates) Then, they're absolved from the stipulations that they not sue on what used to be their patent, get a nice lump sum from the sale of their LZW patent and the protections you've tried to achieve have been effectively sidestepped.
See what I mean? It would be better to actually fix the problem by having software & business-model patents declared invalid than to try to work around them. The ethically-challenged among us will always find workarounds to this sort of workaround.
Re:Different mindset (Score:2)
I guess you and I just have different histories. I've spoken with a good number of executives and lawyers who understand that patents are a PR minefield, and they would rather find ways to use them that do not hurt the company's image. The problem is that in most cases a) they don't know how to go about that and b) they don't have anyone around who is willing to take the time to tell them.
In most cases, open sourcing a patent (that is to say, allowing open source developers to use it freely) would be a tremendous benefit to a company. They get to have the state of the art crystalize around their technology, and if they swing it right they also get a lot of free publicity. A backhanded example of this can be seen in PGP. RSA got a lot of negative press over their reaction to PGP, but in the long run the fact that PGP was out there helped people to understand why public key cryptography was important and secure. If they had pushed PGP on initially, they could probably have been even more successful, faster.
Re:Patents & Freeware (Score:2)
Wrong. You infringe a patent by making, using, selling, offering for sale or importing into the United States anything practicing the invention as claimed. United States Code, Title 35, Section 217(a).
Obvious doesn't mean what you think . . . (Score:2)
Indeed, the obviousness standard as used in the courts cannot rely on an in retrospect analysis of obviousness. Indeed, it cannot rely on a statement of the problem that is solved leading to a "natural" solution. The issue is whether the prior art itself motivates that additional matter.
In my view, the problem is not so much the standards for patentability as their inapplicability in practice to invalidate patents. The "clear and convincing" evidence standard that must be overcome is virtually impossible to overcome. (Imagine six people off the street, taken from their jobs, baffled for weeks by inconsistent and conflicting testimony, given two hours of incomprehensible jury charges -- now tell them that if they have any recurring doubts whether the patent is invalid, they must decide validity in favor of the plaintiff -- well, the result in a complex case is settled before you have empaneled the jury unless the plaintiff or her lawyer enrages them in some way). One solution would be to relax the standard to ordinary "proponderance of the evidence," for art that is not less relevant than that studied by the PTO.
Laughable not! (Score:2)
These statements are so easy to make, but when placed under the light of actual claims and evidence are much, much harder to prove. While everyone likes to say, "its obvious," no one has yet to produce viable prior art.
Not even the highly qualified patent attorneys representing B&N, who could not even find art sufficient to defeat a preliminary injunction. The standard there is simply to show that the Plaintiff doesn't have a substantial likelihood of prevailing on the merits. At trial, the standard is to prove validity by clear and convincing evidence.
I assure you, whatever you may think about the claims being "obvious," this informal use of the word has nothing whatsoever to do with the term of art as it is used in patent practice, or the relevant language in Title 35, Section 103.
Re:Different mindset (Score:2)
Re:Looking at it from their point of view (Score:2)
Can't say I ever have. I actually have pretty much quit watching network television since I got a DSS dish.
25 of of the forty odd US presidents have been lawyers.
That is roughly 60%, which seems reasonable.
Re:Bah Humbug. (Score:2)
If we hadn't allowed people with an agenda to 'help' create laws, we wouldn't need lawyers to conduct everyday business.
You wouldn't consult pedophiles on daycare design and security procedures, similarly it's a bad idea to consult lawyers on design of legal systems.
Remember the earlier thread, on patents, where is was mentioned that having a non-lawyer look at patent claims was a very good way to get ruled against, because the current legal opinion was that only lawyers are capable of determining infringement?
Judges are nearly all (in Canada, they're ALL) lawyers, and most politicians, probably 75%, are lawyers. It's not suprising they've twisted everything, applying complex rules that require lawyers.
Re:And the winner is... (Score:2)
Patents do speed products to market, because a company doesn't have to develop a product, and enough units to flood the market, in secrecy, but the same development would be going on.
Patents might have helped with open protocols, because the protocol could be disclosed without it being freely used in ways the company didn't want, but then MS doesn't patent the Word file formats, they obscure them and change them regularly.
That's something patents should be making open, and they're not. It's sufficient cause to reexamine the whole argument of, "patents advanced discovery much faster".
Re:Causing bigger problems (Score:2)
Big changes, in a slower-moving industry, should be protected longer, because the product cycle, at the end of which, a very different set of products is released, is longer. Not only would it take a lot longer to design and prototype a new chassis, but safety testing would add to that. And then, one year of car sales doesn't see a lot of change. A '98 is much the same as a '99, only over five or so years do you see the ammount of change you do in the computer industry in a few seasons.
So, some parts of the automotive industry would deserve longer protection.
The length of protection needs to be based on the ammount of time needed to develop the product, and to market it, taking advantage of it for long enough to recoup development costs.
The example of the metallic glass alloys isn't valid. If they didn't have the technology finished, they shouldn't have been able to patent it. And if they had it ready, but couldn't convince people to use it, this is a marketting problem, not a patent problem. But, if the industry moves so slowly that factory upgrades are very infrequent, maybe longer protection would be appropriate in this limited area.
My changes to the patent process...
7. Independant discovery either nullifies the patent completely, or grants identical rights to the other developers.
8. Protect it or lose it, like trademarks. If you are aware of, or should be with due vigilance, a company using your patented method, and you don't immediately notify them of your patent, you lose all rights regarding that patent.
#7 is obvious. If someone else independantly discovered it, then it's either too obvious to warrant a patent, or both parties deserve rights to it. This is for thing like Calculus, independantly discovered by Newton and Leibniz, which are definately unobvious, even today not many people independantly discover them, but neither one deserves total credit. (Or in the case of Calculus being a patentable physical process, total patent control.)
#8 would prevent companies from patenting a wide range of fairly simple ideas, then using them like landmines. Wait till a company uses those ideas in a product and is making money, then notify them of their infringement and force a massive settlement.
Hogwash. (Score:2)
/* aspestos suit: On */
Re:Hogwash. (Score:2)
I'm out of school, own my own business, and do programming as a consultant. I've probably signed more contracts than most people, because every job I do has at least one.
Feh, you're the ignorant one. If I don't bow and scrape and thank lawyers for every complex and pointless law, then I'm just too ivory tower. You probably think I'm a communist too, don't you.
I'm sick of the fact that laws can't be straightforward. I think the biggest reason is that it's job security for lawyers, like spaghetti code is for programmers. Our legal system is setup to require every participant to have a lawyer, and to stretch everything out as long as possible.
Haven't you heard the quotes like "The only people who win in a patent trial are the lawyers"? The only way to make money on a patent it to use them like landmines, catching companies after they've independantly invented whatever it was you patented, and making it cheaper for them to bow down to your legal blackmail than fight.
And the lawyers get rich from this. Is it any wonder that so many laws go on a lawmakers, and that laws get more and more complex?
Re:Causing bigger problems (Score:2)
Patents, if enforced in a rapidly moving industry, can limit innovation. Rarely is a good idea protected by a single patent, it's usually completely covered by patenting it, and every possible variation of it, meaning that almost anything based on it is covered, meaning that if anyone wants to improve on what's often a fairly basic idea, they have to come at it from a whole new angle, or go through a couple of generations of development with no hope of a return on the investment.
It wouldn't be hard to stall development, if What's His Name actually did have an enforceable patent on the microchip, people would have either had to license it, or find some completely new technology, and the industry probably wouldn't have developed so quickly.
Not likely. I haven't seen any company that will develop technology they don't intend to pay off sooner than that. Just because new computers tend to be bought every 18 months, doesn't mean there's 17 dry months, and 1 boom month.
And patent disclosure isn't complete. You have to make public the details of the protected invention, but all the skills the company developed in working in that area aren't required to be disclosed. Even if the patent period was almost expired, the company would still have a headstart in competing with the other companies looking to enter the field, both in experience, and in market share, having been the first to market.
No. If independant discovery can be proved, and there's no reason to expect that the burden of proof wouldn't be with the claimant, then the patent should be nullified. The idea of a patent is that you get monopoly protection in exchange for publicising your novel idea. If someone else provably invents the same thing independantly, then your idea isn't that novel, and doesn't deserve protection.
Or, if it is ruled to be novel, but you and the other inventor both happened onto it at the same time by chance, then a coinventor status seems to be a good idea. Seems to be a better idea than immediately striking down the patent if there's a coinventor...
Exactly, it's still a novel idea, even though two people did develop it at the same time, so if it was a physical process (ie, patentable) it would deserve some protection, but is the work of one of them more deserving simply because they filed the papers sooner than the other?
And yet, we see many examples of companies patenting trivial things, like selling data over a network, and then suing companies, years later (the patents are dated in the early to mid nineties) suing companies that have started businesses in those areas.
Sure, these may get struck down, if anyone could afford a legal battle, but with the 'valid until proved otherwise' attitude of the patent office, a stupid patent you can't afford to fight is as dangerous as a valid patent.
I'd also like to see the patent office foot the initial bill in patent challenges, and bill the loser only after the fight, so that companies can afford to challenge crooks who patent the insanely obvious. They might start to raise the bar on applications if they got stuck with the bill from morons patenting air, going bankrupt when presented with a bill for the failed defense, and vanishing.
You may... (Score:2)
For example, my company is in the process of developing an artificial pancreas (read: not a frivilous device, this is a device that can save and extend the lives of millions of diabetics. A device also which many companies have tried and failed to builld already). It is a multimillion dollar project just for development. Suppose my company finished development tomorrow; it cost 50million dollars. We submit it to the FDA, and begin clinical trials. Our competitors get ahold of it. They realize the genius of our device, it seems so simple. So they copy it, and produce it at a cost of 500 dollars a unit. We on the other hand, have not only 500 dollars a unit, but also the R&D costs on top of it. How do we justify spending 50 million dollars on R&D, when our competitors can force us to compete at cost? Futhermore, how do we justify the risk (high chance of failure) to potential investors (e.g., Venture Capitalists). If 9 in 10 ventures of its kind (from their limited insight atleast) fail, the investors need that one company that suceeds to ATLEAST pay the costs of those 9 other failed companies (plus its own) to break even. That means that we need to enjoy monopoly rents on that product to make it happen. I can tell you from experience that it is simply not going to come to fruition otherwise, a great many diabetics would have their lives cut short as a result. In addition, the protection that patents offer is limited (though still valuable). History has proven that it does not take the competition long to figure out what we did right (without infringing on our patents); two to three years later, they produce competing product, price levels come down....How is this an unnecessary landmine foisted on the back of society to the benefit of only lawyers?
Anyhow, i'm going on vacation now, no reply. Bye
Re:You may... (Score:2)
I said, the only way to *make money* with a patent is to use it as a landmine. There's a difference between using a patent to prevent others from copying your work, and using the patent to make money directly.
The use ou describe for patents is the intended, and legitimate usage. What people want to stop is the devious, patent-warfare that we hear all about on Slashdot.
And I don't doubt that patents have stifled devolopment on many products. Patents can serve to keep competitors from stealing a hard-earned research project, or to mine an area, by patenting enough of the 'fairly obvious' methods that a competitor will have to step on some of your patents to do any work in that area.
You have the common myopic view, "if it's good in my field, it must be good in all fields."
Really? I do something every two weeks or so on average, and run a profitable business, yet I don't understand what I'm doing. And you base your opinion on my lack of comprehension on the fact that I don't agree with your knee-jerk myopic and brashly stated opinions?
I understand perfectly well that there are so many loopholes in what should be fairly straightforward rules that a complex contract can't be considered secure without passing it to a lawyer, and then it's only 'probably secure'.
That's not a decent way to run a legal system, with rules so complex that no one person, with a lifetime of study, can understand them all. In this system, ignorance is not a defense, but it's guaranteed, there *will be* laws that someone has not heard of, not to mention loopholes, and specific cases, of those laws. And this is before you get to the tons of precedents which can in some cases go almost completely against the spirit or letter of the written law.
I can also understand, and you seem to fail to grasp this, the difference between a needlessly complex legal system, and a patent system. I can also understand that some things need changing, not abolishing.
I'm not against patents, I'm against patents being used to stifle innovation. I'm against a patent system so complex that a patent registration, done properly, is estimated to cost at least a million dollars, after all paperwork and legal fees are paid.
Any idiot can, as you did, find a few successes in anything, Mussolini is said to have made the trains run on time, but this, even if assumed to be true, says nothing about the man or his polcies. To similarly point to a few examples, in one industry, of patents being necessary, doesn't mean they're implemented tolerably, let alone the best they could be, or that they should be applied in an identical fashion across all industries.
This, your personal attacks, and the irrelevant "I'm saving lives, so you're wrong" arguments you use are perfect examples of what to do when you don't have a logical leg to stand on.
Have fun on your vacation, it's very common that they start late on christmas.
Or maybe you just wanted to get the last word, fling a little mud, insult someone, and then walk away...
Re:Causing bigger problems (Score:2)
Yes, but how does this justify shortening the life of a patent? Even within a given industry different technologies have different lifetimes. You can't say on granting a patent, well, this invention looks like it will have a useful life of 8 years. There is no way to predict anything of the sort
Time to market and useful exclusive lifetime are more important considerations. Patents were NEVER meant to last for the useful lifetime of an invention. They were meant to allow for a reasonable profit.
The life of a patent is SUPPOSED to take into consideration the time required to go from invention to an established market. That time is MUCH shorter in the computer field than in most (if not all) other industries. It is shorter now in any given industry than it was 100 years ago due to the effects of ubiquitous communication on marketing (It's a lot easier to reach a massive audience with your advertizement now than 100 years ago).
Patents are SUPPOSED to run out while the invention is still quite useful and there is time for a competing product to develop a market and become profitable. If an invention becomes worthless before the patent even expires, the patent lasted WAY too long. Wanna buy a nice new MFM hard drive?
On the issue of obviousness and novelty, If two people independantly invent something, they certainly SHOULD be granted co-inventor status. If MANY people independantly invent something, then it clearly was obvious.
Patents were supposed to be a deal struck between an inventor and society. In that deal, Society gets a written description of a new invention good enough that anyone skilled in the field can re-create the invention, and as compensation, society guarentees that nobody will do so for a reasonable amount of time. It was NEVER meant to provide a windfall for the inventor, or to block other inventors from innovating. It certainly wasn't meant to allow someone to patent everything he/she can imagine and then lay in wait for someone else to stumble over their patent landmine.
Re:copyright standard (Score:2)
To show a violation a copyright holder need only show that the alleged violator had access to the copyrighted work (i.e. had seen it previously) and that the alleged violator's work was "substantially similar".
In the case of software, that would generally require that I saw the source to the proprietary code. Considering how jealously that is guarded, it would be hard to claim that I must have stumbled into a copy of it somehow.