how patents work (was: licensing of CIFS standards)

Alessandro Rubini rubini at
Wed Apr 10 13:29:12 UTC 2002

Hello Axel.
Shortly: I think Joerg is right.

In more detail, let me quote you:
> No, it's not. Prior art doesn't mean "an example of something having
> been done before". The question to ask is, "Given the claim in this
> patent, would it be obvious to a skilled software engineer how to
> implement it?".

On the other hand, most software patents and scientific papers do not
include the implementation. They just describe the idea and some
information on how it is implemented (papers have much information,
usually, while patents has almost none of it).

Your quote is right, but not to the point that the skilled person must
"implement" it, just "invent the same idea", as far as I know. But I
agree that "skilled in the art" is used by patent offices as a synonym
of "a person with good knowledge but no inventive ability at all",
which means "it must have been published".

But the point is that it's not about the implementation, only about
the idea. Otherwise you can patent something (without disclosing the
implementation) and I might be allowed to patent the exact same thing.
That's nonsense, as the patent application itself is prior art since
it "disclaims" the idea. Nobody is concerned with implementation here,
as it's all about vaporware.

I'm not sure of what I say here, as I'm not a patent lawyer or
anything, but I've been interested in the issue for some time. If you
still think we (we == "me and Joerg" here) are wrong, could you please
support your claims with some credentials (either "I'm sure because I
work in the field" or, better, a pointer to published information
about use of prior art in patent busting).

Still, I think in this specific case invalidating the patent is not
the way to go.

> Don't turn this into a Sun vs. Linux argument again please, we've had
> enough of that...

Obviously, here I wholeheartedly agree with you. 

thanks for your patience

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