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From "Richard Eckart de Castilho (JIRA)" <j...@apache.org>
Subject [jira] [Commented] (LEGAL-184) Apache should join in the Movement for Patent Clarity
Date Tue, 05 Nov 2013 07:45:18 GMT

    [ https://issues.apache.org/jira/browse/LEGAL-184?page=com.atlassian.jira.plugin.system.issuetabpanels:comment-tabpanel&focusedCommentId=13813725#comment-13813725

Richard Eckart de Castilho commented on LEGAL-184:

Questions tend to go to mailing lists where mail clients facilitate quoting and discussing,
while tasks (bugs, issues, enhancements, etc.) go to Jira.
However, the present post misses a principal requirement for being a question, namely the
question itself. (I found no "?" on the page outside an URL). 

The description of this issue reads rather like a call-for-action to Apache members (not committers,
or PMCs, but the *real* members) about participating in the patent discussion. Possible there
is a mailing list just for the members, which might then reach the desired audience.

Questions do also have a life-cycle which can lead to closing them. A prominent example is
Stackoverflow and the likes. However, on such sites as Stackoverflow, there tend to be rules
for formulating questions in such a way that they lead to a conclusion and are not open ended.
E.g. prior effort needs to be documented, the exact problem need and desired result needs
to be specified, so that the community can help get from the current state to the desired

I doubt there are guidelines at Apache for using particular types of Jira issues, this probably
being rather left to the be defined by the PMCs of the individual projects. IMHO, there is
an inflation of issue types and PMCs should be able to outright remove certain types from
their Jira projects.

So if the Apache Legal community chooses to discuss via Jira rather than via the list (we've
seen that in the past already for several licenses), a question-type issue is as valid as
any other issue being resolved at the same point at which mailing list discussions stop or
dissolve, except that on Jira somebody would need to explicitly resolve the issue.

Regarding culture: I suppose, sometimes developers tend to be allergic about open issues because
they don't easily go away ;) mailing list posts, on the other hand, are more easily ignored.

> Apache should join in the Movement for Patent Clarity
> -----------------------------------------------------
>                 Key: LEGAL-184
>                 URL: https://issues.apache.org/jira/browse/LEGAL-184
>             Project: Legal Discuss
>          Issue Type: Question
>            Reporter: Lawrence Rosen
> W3C PSIG is currently trying to identify ways in which to make patents less of a risk
for its web standards. Among the discussion items there are changes to the W3C Patent Policy
to require more precise information from members who are excluding their Essential Claims.

> I encourage Apache members to support this effort.
> Let me refer you below to a few references I found in Google on the topic of "patent
claim clarity". Many legal scholars and advocacy groups are recommending specific efforts,
particularly with software patents, to reduce disincentives of the patent system. Those efforts
have a common feature: They burden patent owners to cooperate more to clarify their patents.
> Below are some interesting quotations and links.
> To be fair, none of those articles proposes specifically that participants in standards
organizations cooperate to make their excluded patent claims clear and unambiguous. But doing
this in W3C would be a simple step towards the goal advocated in the articles cited below.
And it is something small we can do as cooperating W3C members to avoid our own patent risks.
> I will not be attending the next W3C PSIG meeting to make this argument, but I ask other
Apache members to speak up through their W3C reps if you can. 
> /Larry
> *********************
> EFF Files Comments with PTO on Patent Clarity.
> Vague patent claims, especially in software patents, are causing enormous harm. Lack
of adequate notice means innovators work in the shadow of unavoidable risk. And when creators
can’t adequately evaluate their risk, the patent system acts as a disincentive to innovation
and creation.
> Today, EFF filed comments with the U.S Patent & Trademark Office (PTO) regarding
proposals for improving patent clarity. We welcome the PTO’s efforts to make patent claims
easier to understand. We are particularly encouraged by the proposal to require applicants
to indicate which parts of the specification (this is the description of the invention) relate
to claim elements (the supposed boundaries of the patent). We think this will make it easier
to narrowly limit patents to what applicants actually invent and disclose.
> https://www.eff.org/deeplinks/2013/03/eff-files-comments-pto-patent-clarity
> **************************
> Promoting Patent Claim Clarity 
> by Peter S. Menell, University of California, Berkeley - School of Law
> Fuzzy patent claim boundaries undermine the functioning of the patent system by making
it difficult for inventors and competitors to assess freedom to operate in many technology
marketplaces, especially those relating to computer software and business methods. This commentary
advocates the use of a detailed, electronic, claim application form to address this problem.
By placing greater responsibility on patent applicants to delineate the precise boundaries
of their claims -- by, for example, specifically indicating whether they intend to invoke
the means-plus-function claim format by checking a box -- patent examiners could more easily
evaluate what is being claimed, competitors could more easily know contested intellectual
territory, and courts could more easily construe patent claims.
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171287
> *************************
> 2. Tightening Functional Claiming. The PTO will provide new targeted training to its
examiners on scrutiny of functional claims and will, over the next six months develop strategies
to improve claim clarity, such as by use of glossaries in patent specifications to assist
examiners in the software field.
> In my view, these two elements are sorely needed and will generally improve the patent
system without actually limiting the ability of patent assertion entities to derive value
from their innovations through patent assertion. In addition, the PTO will begin a number
of outreach mechanisms intended to provide assistance to non-patent-insiders who receive patent
demand letter.
> http://www.patentlyo.com/patent/2013/06/patent-reform-2013.html
> **************************
> Inventions are often difficult to describe in words,1 and patents
> often contain technical information intertwined with legal meaning,2
> making patent claims more difficult to interpret than other legal documents.
> Despite complex interpretive rules, patent law has failed to
> accomplish one of its essential missions: allowing interested parties to
> understand a patent’s scope in a consistent and predictable manner.3
> The Failure of Public Notice in Patent Prosecution, Harvard Journal of Law & Technology,
Volume 21, Number 1 Fall 2007

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