[Sussex] Patent bites patenter.

[Paul Tansom]

On Thu, 2005-05-19 at 14:09 +0100, Geoffrey J. Teale wrote:
> Paul Tansom <paul at aptanet.com> writes:
<snip>
> > Either the power of their legal team will string
> > things out so far that the other side runs out of financing, their legal
> > team will run rings around what the other side can do (I may be being
> > unfair here in assuming that the extra money buys better, or possibly
> > less ethical, legal representation*), or they settle out of court for a
> > sum that is good for the other side, but a mere drop in the ocean for
> > MS. In whichever outcome it will merely be yet another example of big
> > business being able to do whatever they want against the little guy - be
> > that small business or customer.
> 
> Interesting point.  One of the arguments made in favour of patents is
> that the allow the little guys to protect themselves.  If this isn't
> true in reality then the argument against patents is even stronger.

In theory it should, in practise I don't think it does. If you have a
patent and try to enforce it on a big co. when you are a little/tiny co.
then you aim is to persuade them it is less hassle to simply license it
from you. If they don't the likelihood is (from my understanding and
reading) is that you run out of money and go under before the case is
settled - someone then buys your assets (patents) for a discount price.

> I've consciously not commented on this story so far because it would
> be hard to make a stand against patents and celebrate someones
> suffering at the hands of patent law at the same time.

Indeed, although some see it as MS being beaten with the stick they like
to use on others and derive some satisfaction, this does seem to be
indicating that the whole thing works properly. Should it case get to
the point of going against MS then it could be used as a pro-patent
argument. If it ends up settling out of court then nothing is gained by
anyone (bar the patent holder and MS who are both happy). If it gets to
the point of the patent holder pulling out because he can't afford to
fight on then the anti-patent case is demonstrated. Sadly I suspect that
this will either prove to be an unenforceable patent for some reason or
be settled out of court.

> > * I may be overly cynical here, but I tend to see the legal system
> > (well, primarily the US legal system) as a means of using the law to win
> > your case - as opposed to using the law to define what is right.
> 
> Well those people fighting the case will always attempt to use the law
> to win the case (that is, by definition, what trial lawyers do in
> every legal system).  The people who have to decide what is "right"
> are the jury and/or judge.  Judgements create precedent which defines
> a particular understanding of the law and can be cited in later cases,
> but the fundamentals of law are defined by legislation.
> 
> With this in mind, to suggest that lawyers fighting a case should be
> defining "right" and "wrong" is to introduce a massive conflict of
> interest into the legal system.  Lawyers attempt to show that the
> weight of legislation and precedent means that their clients case
> should win - for a lawyer to back down from this and not argue a point
> of law because they don't believe it to be morally correct would be a
> failure on their part to do the job for which they are contracted.    

I'm more thinking of situations where cases that are thrown out on a
technicality. Clearly these technicalities are there to protect the
innocent, but it does sometimes seem that the purpose of the legal
representation is not to present the best evidence to support your case,
but to win the case. This may seem like two ways of saying the same
thing, but sometimes it appears that it is a case of not being able to
win the case on the evidence, so find another way to ensure you are the
winning side. Perhaps this doesn't happen often and we just see the
exceptions. Perhaps US TV portrays lawyers as corrupt to often and that
is the image that sticks! Perhaps things like the SCO case don't show
the US lawyers in a good light! I can't think of a real example off
hand, so perhaps a comedy/fictitious example from the Thin Blue Line
(ook, sad!) will do - where a case was thrown out because one of them
was wearing the wrong uniform (iirc). Clearly exaggerated comedy, but
all comedy has a basis in reality otherwise it isn't funny (hmm, really
bad example!!!).

Anyway, that's getting OT!

-- 
Paul Tansom | Aptanet Ltd. | http://www.aptanet.com/