Steve Stites

From the article: "The time constraints make it almost impossible to discover all applicable prior art, particularly in the software area, where much of the prior art is embodied in code for which there is no practical search method."

Open source has a huge advantage in software patent fights by possessing a very superior method of finding prior art. Just throw the question to the community at large asking if anyone has seen any prior art for the software patent in question during their career. Within a few days we can gather a mountain of prior art that no law firm could ever discover no matter how much time and money they spent.

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Steve Stites

Simon Phipps said: "Hence I'd not speak of "improving patent quality" but rather of "challenging patent abuse", for example.

I'm convinced that in this sort of political struggle the words matter even more than we think - hence my comment."

The distinction is very important in the problem of finding prior art. IBM and the U.S. Patent Office would like us to form expert committees to review all software patent applications to apply our knowledge of software history to find prior art. This would "improve patent quality". However the amount of work involved makes this impractical just as it makes it impractical for the Patent Office to "improve patent quality" by their ordinary work methods.

The few software patent attacks that we have to face in court makes "challenging patent abuse" practical by searching for prior art. We can do that for two or three cases a year and have a very potent and cheap weapon to counter software patent attacks. It also makes the lawyers nervous to mount a software patent attack on Open Source because they have no way of predicting how effective our prior art defence might be.

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Steve Stites