In an article, Gene Quinn on IPWatchDog argues that a yet-to-be decided patent application filed before Blinski’s decision should be judged on the old standard, instead of the new. He does have a point, which I will discuss later. But first, I find it really unfortunate that Quinn decided on the beginning of the article to attack his critics in a way that is fundamentally wrong. Yes, in our anti-software patent camp we have zealots, plenty of them. However, most of us are reasonable people.
A large number of us, like Quinn, earn a living because of IP protection provided to us by law. To say we are anti-software patent because we want to copy what others had spend time and effort to develop it is wrong. It completely ignores that copying is a double-edged sword. Turn the table around and we will find people copying our stuff, something we spend our whole day creating.
Most of us do not claim to be law experts. To categorize all of us as such is plainly wrong. What is fair is to say that we have a different view on software patent as a result of coming from another direction. Our view is that it has gone berserk and needed to be brought back to reflect reality and its fundamental purpose: promote the interest of society by balancing the needs of inventors and public good.
He is a law expert. I only claim to have a cursory understanding on the law, and less on how the mechanics of the law actually works. However, he does pose an interesting question, i.e., how to judge pending applications, filed on good faith before the Blinski decision.
The truth? I have no answer to that. I strongly believe that if a criminal committed an offense the law at the time the offense is committed is the one to apply to his case, regardless of the changes to the law he is charged with. In PhD examinations for example, examiners have to judge whether the work had “contributed to knowledge” and the yardstick is the state-of-the-art at the time the work commences. Normally it meant casting our mind back three years which is relatively easy. Sometimes, it is not, as the work was performed more than 8 years ago.
In this case, there is a very strong and good reason to judge the application using the standard of the time. However, if we look the practical implication, then the case to do so will start to wobble. If, should an infringement case be brought, the patent in question is going to be judged by the Blinski standard, then evaluating the patent based on the old standard does not sound right. Moreover, this will create a situation where by a normal curse of patent suite, i.e., one party choose to settle instead of fighting because it is cheaper, is fundamentally not supported by the current law structure. It would be grossly unfair to the party in question.
As I said, I do not have an answer to Quinn’s question. What I will say is the Patent Office are used to this type of situations and will know how to handle it. For example, just after software patents were allowed, we have cases where the pending patents would had been rejected if we evaluate it using the standard on the day it was filed. The same argument forwarded by Quinn, i.e., inventors cannot modify the patent information to suit the new reality, applies here as well. My believe is whatever convention used to manage that should be imported for use this time. Moreover, good cases, those that in everyone’s view will qualify for IP protection because it satisfy the principle for which the protection is designed for, *will* survive this change in law in particular, and whatever changes in law that comes.
Going back to the case of the example of the criminal, we sometime see new thinking in laws change the fate of the criminals : Death sentences are normally commuted once an anti-death sentence law is passed. In the not so distant past, inmates’ execution dates are postponed as doubts are raised on the method of carrying out the sentence are resolved.
I take solemn in the fact that while I am not versed at all in the mechanics of the law, those in the known and who has to work it will come out with a compromise that upheld the spirit and the letter of the law.