Microsoft Employee Admits That Patent Disclosure Is A Myth
from the and-here-we-go-again dept
Defenders of the patent system quite frequently point out that one of the main benefits (some claim the only benefit) of the patent system is "disclosure." That is, because the patent system requires you to disclose your patent, the patent system is quite helpful in spreading ideas. This is a myth that's easily debunked on a few points. First, it only really makes sense to get patent protection if you know the idea will get disclosed or figured out anyway. In those cases, the disclosure via the patent system is meaningless, since the info would have gotten out anyway. Second, these days, thanks to "willful infringement" tripling the damages you pay, many corporations tell employees not to look at relevant patents, as it only opens up more liability. Third, many patent lawyers are taught to write claims that are as broad and vague as possible while still getting approved. This way, the patent can be construed to cover much more than the actual invention.Now, Slashdot points us to a Microsoft employee admitting that looking at patents is a total waste because they never actually disclose anything useful:
When using existing libraries, services, tools, and methods from outside Microsoft, we must be respectful of licenses, copyrights, and patents. Generally, you want to carefully research licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section -- the only section that counts -- was indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended when it comes to patents.Of course, technically, a patent is supposed to be written so that someone skilled in the art can replicate the invention from the patent alone. But, when even patent holders can't understand their own patents, it's quite clear that reality doesn't match up with the theory here. So, the next time you hear a patent system defender claiming the importance of disclosure, it might be worth pointing out that one of the biggest patent holding companies in the world instructs its own employees to ignore patents, because you can't actually learn anything from them in the first place.
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Filed Under: disclosure, myth, patents
Companies: microsoft
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Enablement?
Though the possibility for willful infringement removes issued patents from being your first source of research, it's pretty naive to think that there is nothing of use being disclosed in a patent.
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Re: Enablement?
What useful information was disclosed in the infamous "one click patent" ?
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Research vs WIlful Infringement
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Respectifully
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I'm disinclined to believe that any justification for patents, or the patent system, when closely inspected, exists.
In no way shape or form does the system encourage innovation - it simply prevents individuals without a defensive patent portfolio from entering into any industry, maintaining the dominance of established market players.
Then there are the concepts within patent law, that go beyond not making no sense when deeply analysed - the ones that make no sense at face value either.
I find it quite ridiculous that there is actually so much as the idea of an accidental patent infringement, as implied by willful infringement, it is unreservedly absurd that it exists within law.
If anyone breaches a patent that they do not know about, its content should be considered obvious in nature, rendering the patent completely invalid.
The only true breaches of a patent must, logically, be willful. Given that there are no other real forms of patent infringement, there is no point in distinguishing between them in law.
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Is it really a patent if it's not revuable?
> about, its content should be considered obvious
> in nature, rendering the patent completely invalid."
Your right! But it's difficult to come to any logical conclusion for incomplete, inaccurate, obfuscation thru legalese.
If it can't be understood by others in the industry, it SHOULD be rendeded an invalid claim and/or patent.
Obfuscation thru legalese really amounts to blatant omission of the disclosure and/or claims. It seems to be a deliberate attempt to hide the discovery from peers in the software industry who would understand the discovery. If this theory is true, I wonder if there are a lot of companies "Outside Microsoft" that have created prior art, but Microsoft claimed ownership. There seems to be no other logical explanation.
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Disclosure?
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accidental infringement -> obvious?
> about, its content should be considered obvious
> in nature, rendering the patent completely invalid."
Not so fast!
Despite of what this post says, there are generally TWO recognized points of value in patents:
1. Disclosure (this is what is being discussed here). To be valid, a patent MUST have a usable and complete disclosure. Otherwsie, the patent is invalid. (And the claims MUST be supported by the Disclosure, or, again, the patent is invalid.)
2. Granting of a temporary monopoly over the invention is thought to give an insentive to the inventor to spend time and money researching and inventing. Many inventions that are very cheap to copy and are very expensive to make would not happen otherwise.
Now, back to the "accidental infringement".
Quite often, the best inventions (not 99% of what's patented, though) are truly innovative and useful. They sometimes lead to advances in the field and are discussed in academia and among the experts in the field. Of course, these inventions often take time and money to develop, and it is only fair to grant the inventor a patent.
It is quite possible that someone would be in a position to "accidentally infringe" a patent solely BECAUSE the ideas behind the invention have become known through a patent and discussed my many people who have not seen that patent (and are not even aware that what they are discussing is patented).
If there was a danger that such patents would be held invalid (or unenforceable), then the BEST inventions would NOT be patented and would NOT be disclosed. And we would be stuck ony aware of the ideas of limited utility and limited interest.
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Willful Infringement
http://arstechnica.com/news.ars/post/20070824-willful-infringement-gets-harder-to-prove-i n-patent-cases.html
Oh my LORD. Guess what other web site has declared the same thing!!! YOU GOT IT!!! TECHDIRT!!!
http://techdirt.com/articles/20070821/200443.shtml
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Debunking and Other Myths
o Boldrin and Levine debunked the myth of disclosure. Wrong. Boldrin and Levine stated, without support, that if an invention will be discovered anyway, then a company will file for an invention. If a company can keep an invention secret for 20 years, they will. Their conclusion was, ta-da, patents serve no disclosure purpose.
Wait a moment. Is there another, economic justification? Of course, Boldrin and Levine are economists, but they are hardly objective economists. They have shown a tendency to establish a position, and find evidence to support that position.
Companies will do what is cheapest and what provides the lowest risk. Let's say a company invents a device X.
In the first case, the Boldrin and Levine scenario, the company knows device X can be readily reverse engineered. So the company files for patent protection. This route is economically the route that provides the greatest return for the investment.
Now, what if device X is not easy to reverse engineer? The company has a huge decision. First, what is the cost to keep the invention secret? Trade secrets are hard to protect. If the invention will be known by 1,000 people in the company, even if it is impossible to reverse engineer, it is probably also going to be impossible or extremely expensive to keep as a trade secret. So, even though reverse engineering is difficult or impossible, logic (and economics) votes for the less risky avenue of filing for a patent.
What if invention X is impossible or extremely difficult to reverse engineer, and only half a dozen people know about the invention? Getting those people to understand the importance of keeping the trade secret process used to make invention X secret is relatively cheap and effective compared to patent protection, so that is what the company will probably do. Except, if the potential life of the invention is relatively low, the company may again determine cost/benefit and may yet decide the patent is the lowest cost and lowest risk method of protecting the invention.
Given that Boldrin and Levine "proved" that secrecy is considered the most effective method of protecting information by companies, it is logical to conclude that in lieu of patents, fewer inventions will be disclosed.
Before 10 people jump and say, AHA, then how can you ever sell your invention, I will elucidate. There are many steps involved in making a product. Some are easily reverse engineered. Others are not. Trade secrets can apply to those portions of an invention that would not be apparent by mere inspection.
o Patents are written so that a person of skill in the art is unable to understand them.
Possibly partially true.
If a patent application is knowlingly written inaccurately or incompletely, then the practitioner has perpetrated a fraud on the office and, if proven, the practitioner will be toast.
On the other hand, some patent applications can be extremely difficult to read. A person of "ordinary skill in the art" also needs excellent reading comprehension. Patent applications are not written in "legalese," though many words used are uncommon, but they are written in a very formal, almost stuffy, way. We have become so familiar with colloquial and informal English that the highly stylized writing in patents is akin to the difference between Stephen King and Charles Dickens. To claim that properly written patents are gibberish or incomplete is a statement of someone unfamiliar with patents.
o It could well be that Microsoft does not review competitor patents. If you asked someone at my last couple of companies whether we review patents, I suspect they might say no too, even though that was an inaccurate statement at the time I was at those companies. It is more likely that such reviewing of patents is conducted by select individuals.
o As others have noted above, the claims are supported by the specification. It does not require a patent attorney to read the claims. I have met many engineers who were quite adept at reading and interpreting claims. You do need some practice and experience at reading them.
o Regarding the instruction not to search, view or speculate about patents. I am a little surprised regarding two parts of that instruction. I have always cautioned anyone reading patents to not speculate about them, as that is opinion and opinions may well be inaccurate and inappropriate. However, searching and viewing patents is a routine activity for many companies (I am unable to say most because I have no direct knowledge of most).
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Re: Enablement?
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Re: Debunking and Other Myths
So when a person takes a position and then presents evidence to support that position that makes them nonobjective? I see, so that must be why you present no evidence to support your claims. You believe that by presenting unsubstantiated claims you are being objective, huh? What a load. I'm not even going to bother commenting on the rest of your post except to note that it's just more of the same.
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Re: Debunking and Other Myths
Your comment is a little tough to follow. I am trying to understand one of the main points-- An axiom which seems to now be challenged. Is there is a legal need to make a patent duplicatable by someone versed in the field of study, skill set, et al?
Of course, maybe you see this opens up a new challenge for an ethical inventor in say, the Computer Science field:
They can't review and determine if "Their" new and exciting invention hasn't already been invented in the past.
Understand that if this rings true, it may very well create a whole new level of pre-requisites within the Patent System. Should an ethical inventor consider pursuing a JD or take an internship in patent law, in addition to their field of study?
You may see where this is going-- it leads to a very interesting world in which the value add of a legalese-based patent is difficult to discern within their field of study. How does this value-add actually add value to the Patent system itself?
So let's take a few moments to review the definition of Patent and see how it differs:
The word patent originates from the Latin patere, which means "to lay open" (i.e., to make available for public inspection), and more directly as a shortened version of the term letters patent, which originally denoted a royal decree granting exclusive rights to a person. (Wikipedia)
1 a: open to public inspection (Merriam-Webster)
See where the confusion comes from?
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Quite interesting- because once it hits the legal requirement of "new art" (easily derived from % new code) well, someone may come down the hallway to congratulate you for your work... And not tell you about the new patent being filed on your behalf.
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Random thoughts
But such an effort would only work if it was opened to all developers, including the open source community.
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Having myself some experience within the business of patents, I totally agree with #1 and #5: patents have two parts, one for the disclosure, another for the claims. Usually, the claims part can only be understood by a ip lawyer, specially for very complex patents. But the disclosure one usually should be completely transparent from the viewpoint of someone with practical knowledge of the art, or even an intelligent person with no particular knowledge of the area.
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Claims != Disclosure
He is speaking of the CLAIMS, not the DISCLOSURE. Your equating of the two in this disparaging post is at best a sign of great ignorance, at worst a display of intellectual dishonesty.
You want to denigrate patents? Fine, but don't do it by lying.
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Re: Re: Debunking and Other Myths
As with all things, there are degrees. A patent must disclose the information necessary such that a person of ordinary skill in the art can practice the invention. However, there is in implicit assumption that the person of ordinary skill in the art knows how to read.
Do you need to be an attorney to read claims? No. I am not an attorney and I have been reading and interpreting claims for nearly a decade and a half. I have worked with engineers whose ability to quickly interpret claims I found impressive. Again, no JD.
When you first read claims, the format can be difficult to follow. However, the first time you were exposed to Green's Theorem I am guessing it was not immediately intuitive and it took you most of a semester to gain sufficient understanding of the Theorem to be able to apply it in practical situations.
Similarly, the first business class I took, Business 101, turned out to be one of the most difficult business classes I ever took, because I did not have the vocabulary and I spent a lot of time understanding terms that anyone with a basic business background or degree found second nature.
Any specialized field will have its own terminology and formats. Patents are no different. While no special skills are required to reading a patent, it does take some practice and experience.
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Re: Re: Re: Debunking and Other Myths
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Re: Re: Re: Re: Debunking and Other Myths
The problem is thinking that the claims are supposed to disclose anything. The claims are not a disclosure; they are a legal claim to a piece of property. Claims are designed to set up the legal boundaries of the patent property. It is the patent specification that is designed to disclose the invention, showing that the inventor has something and then providing sufficient information to enable one having ordinary skill in the art to make and use that invention.
If the inventor is not reading the patent specification, then there's no surprise that he's does get anything out of the patent. But that shows a problem with the inventor, not with the patent or the system.
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Re:
This cracks me up. Whenever anyone around here quotes from any section other than claims, we're told that those sections are meaningless fluff, and "the only thing that matters" are the claims. If the claims do not provide the actual disclosure, but are the only things that matter... then, clearly, once again, DISCLOSURE IS NOT HAPPENING. Because the actual meat, the *actual* disclosure is apparently different from the "disclosure" in the patent.
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Re: Claims != Disclosure
Yes, I read it, but I thank you for, as usual, making false assumptions about me, rather than addressing the actual issue.
He is speaking of the CLAIMS, not the DISCLOSURE. Your equating of the two in this disparaging post is at best a sign of great ignorance, at worst a display of intellectual dishonesty.
No, I would say that it is folks like yourself, who try to walk that bogus line of saying both that (a) claims are the only thing that matter in a patent and (b) that claims are not disclosure who are being severely intellectually dishonest.
If the claims are the only thing that matter, then they matter from the standpoint of disclosure. After all, the "disclosure" part of the patent doesn't matter by your own logic.
The only intellectual dishonesty is from folks like yourself.
You want to denigrate patents? Fine, but don't do it by lying.
What lie? The only lie I see here is a claim that I did not read what the guy said. I stand by my statements.
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Re: Re: Claims != Disclosure
If the claims are the only thing that matter, then they matter from the standpoint of disclosure. After all, the "disclosure" part of the patent doesn't matter by your own logic.
I am certainly not saying that, and indeed I never have said all that. If anyone is actually saying that, then yes, they are being intellectually dishonest, because (a) is wrong. The claims are not the only thing that matters; if they were, then it would not matter what is in the specification. That assertion runs starkly against 35 U.S.C. 112.
The claims and the specification perform two entirely different functions. The specification discloses the invention and teaches one having ordinary skill in the pertinent art how to make and use the invention. The claims set up the metes and bounds of the property that the patent covers. The specification is what is valuable to the public; the claims are what is valuable to the patent holder.
What lie? The only lie I see here is a claim that I did not read what the guy said. I stand by my statements.
Well then I guess it just shows your ignorance of what a patent contains and what purposes the parts of a patent serve. Thinking that claims are supposed to disclose the invention is wrong; it is the spec that serves that function, and one should read it if one wants to know what the invention is an how to make and use it. Equating the claims of a patent to the disclosure of a patent is totally wrong-headed, and I thought you already knew this.
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Re: Re: Re: Re: Debunking and Other Myths
The statutes do not require writing at the ninth grade level, which I believe is the goal of some magazines.
Some inventors will be unable to read a patent regardless of the level of the language used. I suspect some inventors would think a patent is written at a relatively simple level.
On the other hand, a mathematical description of the mechanisms I have designed would be totally incomprehensible to me, though more accurate than mere words alone.
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Re: Re: Re: Re: Re: Debunking and Other Myths
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Re: Re: Re: Claims != Disclosure
I'm an engineer and have had some of my inventions patented by my employer. By the time the lawyers got through with it the disclosure part of these patents would make one think that the patents covered much more that they really did as they only revealed the inventions as small parts of much larger machines. This was intentional, to discourage competitors. The parts that delimited the actual inventions were the claims sections and even I, the inventor, could not recognize my invention from those parts the way they were written. I don't think anyone without special training in patent law could tell what was actually patented and what wasn't from reading those patents.
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Re: Re: Re: Re: Claims != Disclosure
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Re: Re: Re: Claims != Disclosure
I am certainly not saying that, and indeed I never have said all that. If anyone is actually saying that, then yes, they are being intellectually dishonest, because (a) is wrong. The claims are not the only thing that matters; if they were, then it would not matter what is in the specification. That assertion runs starkly against 35 U.S.C. 112.
Ok. Then I apologize, but I could have sworn you were among those who made that claim. Certainly some of the patent system defenders have made that claim in the comments repeatedly.
The claims and the specification perform two entirely different functions.
Um. Does that not seem like a huge problem to you? If you disclose something in one section that's different than the "claims" then what the hell good is the patent?
The specification discloses the invention and teaches one having ordinary skill in the pertinent art how to make and use the invention. The claims set up the metes and bounds of the property that the patent covers.
As someone else noted, based on your description, the whole of patent law is even more ridiculous that originally discussed. Because then you have a situation where the useful part is in one area, but the part that will tell you if you're violating someone's property is indecipherable.
Does that not strike you as tremendously problematic?
Oh, wait, I forgot. You're a (soon to be) patent attorney. That sort of ridiculousness will help you pay for a nice home in the burbs and a luxury car or three.
Well then I guess it just shows your ignorance of what a patent contains and what purposes the parts of a patent serve.
You know better than to make foolish assertions like that. It doesn't do you much good to act like a child and throw around ridiculous assertions.
The purpose of the patent system is to encourage innovation. The fact that you can't stand back far enough to realize that this is even more evidence that the system does the obvious says more about you than it does about me.
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Re: Re: Re: Re: Claims != Disclosure
Apparently you did not read what I wrote. I said that the claims and the specification perform different functions. That does not mean that they are wholly unrelated.
Such an instance as you described is bad and should fail an enablement challenge. Section 112 of the Patent Act requires the disclosure to enable one having ordinary skill in the art to practice the invention that the patent claims. Thus, the scope of the claims should be commensurate with the scope of the specification. An inventor (or his lawyer) that discloses one thing and then tries to claim an unrelated thing is likely going to get rejected on enablement grounds, if not by the patent office then certainly by a judge when the patentee tries to enforce his claims.
As someone else noted, based on your description, the whole of patent law is even more ridiculous that originally discussed. Because then you have a situation where the useful part is in one area, but the part that will tell you if you're violating someone's property is indecipherable.
Indecipherable? Not in my experience. Most of the claims that I read are not indecipherable, or at least not to one having ordinary skill in the art. (Chemical claims likely would be indecipherable to me, but then, I'm not a chemist.) Claims can be long, as they are supposed to distinctly claim every element of an invention, so I could understand if reading one can get exhausting, but I'd be surprised if they were truly indecipherable.
If the claims really are indecipherable, then they may not be distinct claims, and may fail under Section 112 Para. 2. But I'm not sure I'd take the word of a programmer from MS, as I have not seen these claims and I don't know what kind of English education this guy has.
Oh, wait, I forgot. You're a (soon to be) patent attorney. That sort of ridiculousness will help you pay for a nice home in the burbs and a luxury car or three.
Jealousy does not become you, Mike.
The purpose of the patent system is to encourage innovation. The fact that you can't stand back far enough to realize that this is even more evidence that the system does the obvious says more about you than it does about me.
This is a red herring. I was talking about the purposes of the parts of a patent itself, not the overall system. You're confusing apples and oranges.
It's okay to admit that you don't know what functions the claims and the specification serve. The problem is that based on the history of your posts, you presumed to know what purposes they served, when it's apparent from this thread that you don't.
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Re: Re: Re: Re: Re: Claims != Disclosure
Ah. So you're not denying the entire point of the post? The guy admits that he can't even understand the claims on HIS OWN patents.
Jealousy does not become you, Mike.
Uh, how is it jealousy to explain that you're biased because of where you earn your income from?
And how is it jealousy to point out that your job will eventually earn you what I already have?
You've got a weird sense of logic.
This is a red herring. I was talking about the purposes of the parts of a patent itself, not the overall system. You're confusing apples and oranges.
No. I am keeping it in perspective. Something you do not seem able to do. The "apples" are supposed to support the "orange." They're not. That's a huge problem.
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Re: Re: Re: Re: Re: Claims != Disclosure
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Understanding Disclosures
I am rather surprised the attorney was unable to explain the disclosure to you. The lack of ability to explain the disclosure is also concerning. I would never ask an inventor to sign the declaration until the inventor was comfortable with the disclosure.
Claims, being a definition of the legal bounds of property, can be more difficult to read. However, I have yet to find the claims I was unable to explain, even though some claims have been written so poorly that it took me a while to figure out what they meant.
On the other hand, poorly written claims are coming back to haunt the claims writers as courts are finding more frequently for the respondents when claims are so obtuse as to be either uninterpretable or providing a perception of vagueness.
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Re: Re: Re: Re: Re: Re: Claims != Disclosure
No, I'm saying that the point of your post lacks merit. You posit that patents don't disclose anything, and the "evidence" you use is extremely misleading and evinces nothing. You cite a quote from a MS employee, who may or may not have a good background in English, that talks about the claims of a patent, not the disclosure (i.e. specification), and then use this as basis to say that patents are bad at disclosure. The apparent premise of your post, that the claims are supposed to sufficiently disclose the invention, is a false premise.
If the inventor does not understand his own claims, it is likely because (a), he sucks at English, (b) the patent attorney writes poor claims, or (c) a combination of the two. But regardless of the reason, it has nothing to do with whether the patent itself sufficiently disclosed the invention, a fact that vitiates the thrust of your post.
Uh, how is it jealousy to explain that you're biased because of where you earn your income from?
Why do you always play the bias card when someone who knows more about the law than you do points out your misconceptions about the law and the system?
And how is it jealousy to point out that your job will eventually earn you what I already have?
Bragging also does not become you, Mike.
No. I am keeping it in perspective. Something you do not seem able to do. The "apples" are supposed to support the "orange." They're not. That's a huge problem.
No you are not. You are trying to stear the conversation in a different direction because you got your facts wrong and won't admit it.
If you want to complain about patent law, then do so with honesty and some willingness to have your facts corrected. Otherwise you look like a ranting zealot.
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stop the shilling!!!
guess what: if you don't disclose it, you can't claim it in your patent. that MS employee is "usefully" stupid.
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Re: accidental infringement -> obvious?
Uhm, wait... Well, in *your* business, maybe. I'm running Ubuntu here with 100% free software with all source code available.
If an idea is patented, the patentee should make sure everybody knows. The GIF case, where the company let everybody use it for free until the patent was granted, is a clear demonstration that patents suck.
The free PNG format was actually created because of the GIF patents. And with the fresh aPNG:s (Animated Portable Networks Graphics, supported by Firefox since 3.5), they now beat GIF:s in ALL regards.
Many of the best ideas WOULD be shared, many of them for honor (like in matematics and with the Nobel prize).
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