Re: WEB: OpenMarket patents

James Rogers (
Tue, 03 Mar 1998 22:18:37 -0800

At 08:24 PM 3/3/98 +0000, you wrote:
>If you can convincingly show prior use of the patented stuff, with
>independent development *or* with *them* copying *you*, you can get
>their patent voided.
>If you can show use prior to the date they claim they started
>developing it, that is sufficient proof of independent development.
>If you can show that they copied you, you might be able to take the
>patent away from them.
>Suggest you consult a genuine patent attorney on this.

I have no desire to personally take them to court on this (I currently have
no economic incentive to do so), nor do I want to obtain the patent from
them. My gripe is primarily that these patents *should* be part of the
public domain.

I fault the chimps at the U.S. PTO for letting this kind of nonsense occur
at the expense of the industry at large. It creates a software patent arms
race by software companies (patent or die) with the PTO too clueless to
even keep that at a reasonable level. Because of cases like the OpenMarket
patents, I have a strong incentive to patent every scribble in my notepads;
I do not want to get into the scenario where I develop something and then
have to pay someone else to use it because they patented some obscene
device at a later date that covers my unpatented work. At the very least I
would be faced with an expensive court battle to prove otherwise.

This isn't the first time I have seen this happen to me. I have been
working on the bleeding edge of the web since the early days and had
developed numerous techniques and technologies that were later "invented"
and patented by other parties. After a while this starts to get to me.
I've never patented anything or taken credit for any developments because I
don't care. I get paid either way and I realize that any competent
developer could have done the same thing if they were required to. This is
the main absurdity of most software patents: These patents in no way allow
us to do something now that we didn't know how to do before; the PTO is
under the illusion that knowing how to write a piece of software is somehow
different than actually doing it. These types of patents therefore seem
better suited to copyright law rather than patent law.

-James Rogers