Prior art won't solve the software patent problem (NewsForge)
Such a project cannot really protect programmers from software patents, because it focuses only on absurd software patents -- those that could be legally denied or invalidated based on prior art. However, the greatest danger comes from patents that are not absurd, those for which we have no prior art."
Posted Sep 18, 2006 15:08 UTC (Mon)
by smoogen (subscriber, #97)
[Link] (22 responses)
Demanding that software patents be abolished is spitting in the wind at the moment. Trying to get attention to problems with sit-ins and poster sessions sounds nice, but gets spun rapidly by the monied interests as "crank hippy protesters who never did an 'honest days work' in their lives anyway".. Most people will believe that and go on with their lives.. because most do not know how patents affect them.
Most people in Europe and North America have no reference beyond the old "patents" are the way that the lone inventor can prosper.. and do not know that patents these days are not about inventions but about proxy wars and keeping large companies from having competition. To be honest, until people see on Boston Legal or some other mass produced show that software patents are a problem that affects them daily... it wont get poll numbers and without poll numbers representatives will feel fine taking money to protect the big industry companies.
It may be more risky, but I think by building a large pool of prior art that shows how absurd patents are being awarded these days (and how some of the large pools of patents that IBM etc have are also based on prior art) is a good thing. It gives advocates for the end of software patents something to point to when they say "The Emperor has no clothes." It gives reporters something they can use to "follow the money" when they need to figure out why US Congress and the European Union Commisions are always balking on this.
Posted Sep 18, 2006 15:47 UTC (Mon)
by BrucePerens (guest, #2510)
[Link] (18 responses)
Legislative change is the only solution. If that means we have to stand having some people call us hippies, well, sticks and stones... Bruce
Posted Sep 18, 2006 16:01 UTC (Mon)
by JoeBuck (subscriber, #2330)
[Link] (10 responses)
Posted Sep 18, 2006 17:51 UTC (Mon)
by josh_stern (guest, #4868)
[Link] (9 responses)
Posted Sep 18, 2006 19:42 UTC (Mon)
by BrucePerens (guest, #2510)
[Link] (8 responses)
Having been told what to do by the judicial branch, the patent office does not have much choice. Some of the officers there, however, have told me they'd rather things were different.
I can't see a way to fix this except with legislation. Europe is where the battle is currently being fought. It can be fought in the U.S., but a key part of that fight will be decoupling of software from other sorts of patents like pharmeceuticals. The drug companies want their patents bad enough to spend billions on the issue, and getting them out of the battle is our best strategy. Bruce
Posted Sep 18, 2006 20:29 UTC (Mon)
by josh_stern (guest, #4868)
[Link] (7 responses)
When I wrote "Making "1" no longer true by lobbying for change in the incentive structure of the patent office might be a more approachable goal than getting rid of software patents all together", what I had in mind was less than getting rid of software patents - more like making it so that the patent office performance was evaluated at least equally if they turn down a patent as grant it and that they go about their business in like conservative doctors with the motto "first do no harm".
Posted Sep 18, 2006 21:21 UTC (Mon)
by BrucePerens (guest, #2510)
[Link] (6 responses)
Bruce
Posted Sep 18, 2006 21:31 UTC (Mon)
by josh_stern (guest, #4868)
[Link] (5 responses)
Posted Sep 18, 2006 23:39 UTC (Mon)
by drag (guest, #31333)
[Link] (4 responses)
It's a mistake to go through the judical branch of the government ala the EFF or how the this 'Prior Art' thing is going. Sure judicial activism is popular these days and it seems a nice way to enforce your opinion on others when you don't have the democratic backing of your ideas (because either if they are unpopular or most people just don't seem to care or are ignorant), but it's a mistake to go that way when you realy want to solve problems. From the court's point of view everything is 100% legal and constitutional and on the up and up. They simply can not do anything about it.
You may be able to nail a couple cases with prior art, but it's going to be about the equivelent of doing a insanity plea to get out of murder; It's used in less then 1% of murder cases and when it is it's successfull less then 1% of the time. (I beleive thats right)
Of course even if the concept (making software patents invalid via legislation) is relatively simple, doesn't mean its going to be easy...
Posted Sep 18, 2006 23:49 UTC (Mon)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link] (3 responses)
And if we fail to provide prior art to defendants, the money flowing to patent-based attackers will be used to make it even harder to prevail via legislation. Sad, but true.
Paul E. McKenney (speaking for myself, not necessarily for my employer)
Posted Sep 19, 2006 0:54 UTC (Tue)
by drag (guest, #31333)
[Link] (1 responses)
Is there any statistics on how successfull a 'prior art' defense in a lawsuit is?
That is something I am VERY curious about. I've heard that is very difficult and that almost invariably the judge is going to side against you if there is any gray area.
I think that it's to the point were devoting a lot of time and effort to it is pretty much pointless. Energies may be better spent in educating the public and making the case known that software patents are a threat to the growth of small and medium businesses and is to the point were it's stunting technological growth.
Posted Sep 19, 2006 1:45 UTC (Tue)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link]
Without such an injunction, the defendant is in a much better position -- there is time to try re-examination procedures on the plaintiff's patents, search for more prior art, come up with convincing non-infringement arguments, etc.
And, no, judges do not always favor the patent holder. Though I don't have the statistics handy, I would guess that you can easily get your hands on them.
All that said, I do readily agree that we should also educate the public on the dangers of software patents. Just not to the exclusion of other efforts, including prior art.
Paul E. McKenney (speaking for myself, not for my employer)
Posted Sep 19, 2006 20:20 UTC (Tue)
by kenm (guest, #40607)
[Link]
I attended the recent OSDL meeting on this topic, as an interested
bystander. I attended, not because I like software patents, but
because I am Scared To Death of them. Attendance was free, the
subject matter is monumentally important. Why weren't you ALL
there? I use GPL and other OSS software. A lot. I create software for a
living. No conflict there. Yet I could not hope to avoid conflict with the current SWPAT system,
because under the current system, things that I consider obvious,
trivial, and essential will be patented. During the OSDL meeting, I had a chance to discuss this with a patent
attorney. In the current situation, the mere aggregation of two
well-known, non-patentable things, is patentable. Think about that. The patent office will grant a patent, merely
because no existing patent covers it. Yes, that's crazy, and that's the
real world for you. So a prior art database is essential; the difference is between A)
documenting prior art, so it can be used to fight "bad" patents, and B)
having no available database of prior art, and being unable to
fight. The prior art database will need to be chock full of the painfully
obvious. It will need to cover things you and I take for granted. So, if this prior art database backfires, it is only because we
didn't put enough into it. Yes, we need to "fix" the law, but it won't happen overnight. Given
the capitalist incentive to use patents as a weapon, it may never
happen. I'm glad large companies like IBM are promoting and defending OSS and
the GPL. I'm glad that IBM realizes they have as much to lose as I
do. And I'm glad that RMS is out there, fighting for my rights.
Posted Sep 18, 2006 17:22 UTC (Mon)
by emkey (guest, #144)
[Link] (5 responses)
Note, I'm all for preventing software patents where they don't exists and getting rid of them where they do but it isn't clear to me that those two options are feasible.
Building up a library of prior art and patents is a poor backup plan but it is far better then no backup plan at all.
Posted Sep 18, 2006 20:02 UTC (Mon)
by BrucePerens (guest, #2510)
[Link] (4 responses)
But not nearly as badly as assuming we'll fail before we start. Sure, some people will try to label us hippies, but that just means that we have opposition. It's taken for granted that you will have to fight that sort of stuff whenever any kind of attempt to reform law is taken on. Bruce
Posted Sep 18, 2006 20:28 UTC (Mon)
by emkey (guest, #144)
[Link] (3 responses)
I also understand the concerns of those who fear that attacking this problem on to many fronts will dilute the effort and lead to failure.
However, I tend to think there is a happy medium ground. I also tend to dislike stances that claim there is one true and perfect approach to solving a particular problem. In my experience this is never true. As a general rule there are multiple paths to any particular destination. Each of them will have somewhat different tradeoffs of course and that should certainly weigh into the path each of us chooses to follow.
I also feel that in most cases it is counterproductive to criticise other people for choosing a different path in situations where everyone is heading for the same destination.
Posted Sep 18, 2006 21:29 UTC (Mon)
by BrucePerens (guest, #2510)
[Link] (2 responses)
OSDL's program will be used as a sham to convince governments that the problem software patenting presents for Open Source is being dealt with, and that regulators can go ahead and impose enforcible software patents in Europe. And that may just end up killing the golden goose. Bruce
Posted Sep 18, 2006 21:41 UTC (Mon)
by emkey (guest, #144)
[Link]
So rather then attacking it I'd be inclined to say, "Look at the lengths we are having to go to in order to somewhat blunt the very fundamental and serious problems that software patents are causing."
Posted Sep 19, 2006 7:39 UTC (Tue)
by Wol (subscriber, #4433)
[Link]
Given that that definition seems to be "nobody has previously mentioned it in the literature" (which could well be because it's so obvious that no-one has bothered), that still leaves program version X.1 wide open to attack for minor upgrades even if X.0 is in the prior art database!
Actually, should we actually have a case like this, it might provided some hefty anti-patent ammunition ...
Cheers,
Posted Sep 19, 2006 16:25 UTC (Tue)
by smoogen (subscriber, #97)
[Link]
And things aren't as good in Europe as they would appear to be. While the EU as a whole has not gotten into a software patent system, my understanding is that many member states have signed commerce treaties with the US that have similar rules as the recent Australian pact did. This means that a problem with a member states companies program that infringes on a patent would be covered by a US court and be binding in that member state... These backdoors are with most of the new members of the EU and various other countries that are in line for membership..
So basically the US patent system is getting used in more and more places even if it isn't shown/known. And it will stay in control as long as people think that it could be some persons lottery ticket to make several million dollars.
The only way I see of changing the attitudes of millions of voters is a) getting a large amount of prior art, b) a long list of bad/weak/poor patents that show how easy it is to defraud the country, c) a follow the money expose that shows that the companies have been basically 'paying' for the votes that continued the defrauding and which representatives have been on the til the most. And even then, I do not see software patents going away but their being adjusted in a way that better suits that segment of the economy (shorter length of monopoly, higher standards for awarding them, etc).
Posted Sep 18, 2006 15:50 UTC (Mon)
by coriordan (guest, #7544)
[Link]
A well funded organisation in our midst might give people hope, but in this case it is false-hope. Giving the free software community false hope that the patent problem is being tacked is counter-productive.
I also agree with his backfire scenario. A prior art database was discussed by the anti-swpat movement here in Europe a few times and no one ever decided it was worth doing.
Don't worry about public awareness, complete awareness is not necessary. I think we will eventually win in Europe, and in a lot of the World, and eventually it will come back to the USA when they realise they are only impeding themselves.
Posted Sep 18, 2006 17:30 UTC (Mon)
by bfields (subscriber, #19510)
[Link]
Do you have examples of such spin?
It would seem rather difficult to sustain given that the protesters in question are often people who have actually spent much of their lives doing enormous amounts of highly visible work....
Posted Sep 18, 2006 23:57 UTC (Mon)
by bojan (subscriber, #14302)
[Link]
Hmm, well maybe that's how democracy works in the US, but I have to say I'm a bit more cynical given the view from down under.
What I think is behind this is "revenue stream". Basically, software patents are, just like DRM for instance, considered a nice revenue stream. Until such time when there is more money to be made in a world without software patents, not much (if anything) will change.
I know - it's catch 22. How can open source become big business without being allowed to be big business? No idea. I just don't think legislators will pay much attention to us. They tend to pay a lot more attention to RIAAs and Disneys of the world. After all, that's where *their* money comes from.
Posted Sep 18, 2006 17:05 UTC (Mon)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link] (5 responses)
Attackers are aware of this, and thus push hard for settlements. Without easy access to prior art, the defendants who cannot afford a court case (many of them) have little choice but to settle. Such settlements put money in the attackers' pockets -- hundreds of millions of dollars, as we have seen. The attackers do not need strong patents to accomplish their goals -- if anything, they prefer weak patents, since non-novel and obvious patents are more likely to be infringed, thus providing more victims (and more money) for the attacker. Some of the resulting money can -- and will -- be used to resist the patent reform that many of the above comments are (rightly) advocating. Let's face it, a few hundred million dollars can buy an incredible amount of resistance to reform.
So, if you really want patent reform, up to and including abolition of software patents, you need to (1) follow the money and (2) shut down the money flow. If this flow is not greatly reduced, reform attempts, both in the US and elsewhere, will be like pushing a wet rope up a hill. A prior-art database is a good way of accomplishing #2.
What of the danger of stronger patents? Although this danger is real, it is not immediate. It takes years to create patents, years in which reforms might make some headway -- especially if the patent-troll forces have less money with which to resist reform. In addition, as noted above, weak patents are more dangerous than are strong patents, since weak patents can bring in more money to the attackers, money that can be used to resist reform. Furthermore, the harder and more expensive it is to obtain patents, the more likely patent-based attackers are to fish in other waters.
Finally, it is true that OSAPA is not a complete solution. But it is, IMHO, and important piece of a complete solution. If we refuse to work on any given piece because it is not a complete solution, we will end up doing nothing -- which will certainly make the pro-patent forces quite happy.
So please stop attacking your allies! ;-)
Paul E. McKenney (speaking for myself, not necessarily for my employer)
Posted Sep 18, 2006 17:19 UTC (Mon)
by JoeBuck (subscriber, #2330)
[Link] (2 responses)
Posted Sep 18, 2006 17:34 UTC (Mon)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link]
In addition, denying the information to the defendants allows the attackers to collect more money from litigation or (more likely) settlements. Therefore, failing to publicize prior art provides more money to the attackers, money that will be used to (1) resist reform and (2) create/purchase even more patents. This is already happening. In contrast, the danger that prior art will be used to create stronger patents is a longer term issue, since it takes years to create a patent -- and if we stop giving easy money to the attackers, substantial patent reform might be possible during those years.
We must carefully weigh all of the dangers, as well as their corresponding timeframes. Fixating on some of the dangers and ignoring others will play into the hands of the patent attackers, as will failing to understand the corresponding timeframes.
Paul E. McKenney (my personal opinions, not necessarily those of my employer)
Posted Sep 18, 2006 19:38 UTC (Mon)
by sepreece (guest, #19270)
[Link]
That is, when such a patent is infringed, the infringement is clearer and harder to defend, but there are fewer situations that would infringe.
In the most egregious cases, the prior art isn't particularly hidden or obscure, the authors just make their claims regardless. [Perhaps, like wanton infringement, there should be penalties for wanton disregard of obvious prior art]. So, I doubt a prior art database would really lead to a worse situation than we have today.
Posted Sep 18, 2006 18:08 UTC (Mon)
by oak (guest, #2786)
[Link] (1 responses)
Posted Sep 18, 2006 18:56 UTC (Mon)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link]
Paul E. McKenney (my opinions, not necessarily those of my employer)
Posted Sep 18, 2006 22:10 UTC (Mon)
by kune (guest, #172)
[Link] (15 responses)
Software patents simply mean there cannot be open-source software, which is not backed by big companies like Intel or IBM, which have huge patent portfolios on their own. I doubt that you can call such software free software in the sense RMS uses the term.
OSDL is financed by big companies, the list of the board of directors is a simple proof. The current interim chairman is the General Manager of the Software and Solutions Group of Intel. They try to fix the symptom "patents with prior art" but not the cause of the problem, which is that software patents are inherently broken, because they are increasing the costs of software developments in a way that will cut out the individual free or small business software developer.
Posted Sep 18, 2006 23:04 UTC (Mon)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link] (8 responses)
In addition, as noted before, prior art is desperately needed by patent-litigation defendants. Without easily accessible prior art, many of these defenders must simply pay off the attacker, providing even more money that the attacker can use to resist reform -- and easy money at that.
So, if you oppose prior-art projects, then it seems to me that you are making patent reform, up to and including abolition of software patents, more difficult. The less prior art is available, then patent attackers gather more money, and then use some of this money to resist patent reforms. Unintended consequences, perhaps?
OSDL is indeed financed by big companies, most of which do indeed have large patent portfolios. This is no secret. The key point you might be missing is that these corporations are also prime targets for patent attackers -- something about their having money, I guess. Since such attackers often do not sell product of their own, they are not vulnerable to the big-company patent portfolios. So big companies need patent reform -- for example, the $400+M settlement in the NTP vs. RIM (Blackberry) case is quite sufficient to get even the largest company's full attention.
I cannot say that I blame you for being suspicious, but the motivations of F/OSS and of corporations are much more closely aligned than they have been in the past. Even the largest patent portfolio cannot provide protection from attackers who don't produce any products or provide any services. Therefore, with respect to pure patent attackers, even the largest corporations are in the same position as F/OSS projects.
In addition, I am not aware of any of these corporations claiming that the prior-art project was a complete solution to problems surrounding software patents -- quite the opposite. I agree that it is necessary to do more than simply identify prior art. But we do need to do the prior-art piece.
Paul E. McKenney (still my own opinions, not necessarily those of my employer)
Posted Sep 18, 2006 23:23 UTC (Mon)
by stevenj (guest, #421)
[Link] (5 responses)
The solution for this is to collect prior art for existing patents being challenged.
If you try to collect prior art beforehand, you may end up helping the patent applicants, who are in a position to sweet-talk the examiners by making cosmetic changes to the claims, more than future defendants.
Posted Sep 18, 2006 23:45 UTC (Mon)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link] (4 responses)
Also, are you absolutely certain that preventing additional weak patents from issuing is a bad thing? Or that forcing additional patents to have narrow rather than broad scope is a bad thing?
Please keep in mind that the more weak patents there are, and the broader the scope of each such patent, the greater the ability for patent attackers to extract more money. And the more money patent attackers have, the more tenaciously they can resist badly needed patent reform, again, up to and including abolition of software patents.
As to helping patent applicants more than future defendants, it takes considerable time for the patent applicant to obtain a patent, time in which legislative and judicial patent reform might be possible.
Posted Sep 19, 2006 0:14 UTC (Tue)
by stevenj (guest, #421)
[Link] (1 responses)
First, collecting prior art on existing patents need not wait until a defendant is named. For example, you can do what PubPat does and request an ex partes re-exam to attack strategic patents.
Second, you are assuming that a prior art database will stop "weaker" patents, or cause broad patents to be substantially narrowed. The FSF's legal counsel apparently thinks otherwise: as Stallman explains, making more prior art available to patent applicants can easily backfire.
Based on my experiences with the patent office, I suspect that Stallman is right. Examiners usually seem to be overworked, and only have time to compare art based on superficial characteristics like diagrams and terminology. This helps a software patent to get through, in spite of cited prior art, just by dressing up the description in strange terms. Then future defendents are screwed because the patent is presumptively valid in the face of already-cited art.
Posted Sep 19, 2006 0:45 UTC (Tue)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link]
Because PubPat can only take on a very tiny fraction of the patents, PubPat alone cannot possibly solve the problem faced by patent-litigation defendants. Something more is needed, such as prior-art databases.
Your second point indicates you have not read my posts carefully. My argument is that the real benefit of prior-art databases to defendants outweighs the potential harm via future patents, and that the long timeframes of patent examination permits other reforms to take effect, blunting the potential harm via those future patents. In addition, yes, I do happen believe that prior-art databases have the potential to substantially narrow some patents, prevent others from issuing, and raising the cost to the patent applicant, all of which discourage patent attacks -- which, after all, are motivated by money. However, my main argument does not rely on this belief.
On your final point, there can be no doubt that patent examiners are allowed very little time to evaluate a patent. This is one of the reasons for making it easier for them to find the relevant prior art more quickly. It is also true that patent examiners tend to be hired fresh out of college, where they were not taught about the older technologies that seem to be prior art against all to many recent patents. Another reason to make such information more accessible.
Again, you seem to be considering prior-art databases in isolation, when they are but one piece of the puzzle.
Paul E. McKenney (speaking for myself, not necessarily for my employer)
Posted Sep 19, 2006 0:17 UTC (Tue)
by stevenj (guest, #421)
[Link] (1 responses)
Posted Sep 19, 2006 0:46 UTC (Tue)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link]
Paul E. McKenney (my own opinions, not necessarily those of my employer)
Posted Sep 19, 2006 7:51 UTC (Tue)
by Wol (subscriber, #4433)
[Link] (1 responses)
Except it CAN'T. There is a *H*U*G*E* problem with patents that differ only slightly (and in "obvious" ways) from prior art, but are considered valid because they aren't quite the same and (as a result of court judgements) the Patent Office feels obliged to grant EVEN WHEN THEY KNOW THEY ARE ALMOST THE SAME.
There are two huge problems with patents. Firstly, software patents (which shouldn't exist at all), and secondly the "non-obvious" requirement should be enforced MUCH more strongly. And BOTH require judicial precedent to be overturned ...
Cheers,
Posted Sep 19, 2006 14:25 UTC (Tue)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link]
But that is no reason to refuse to work on the issues that -can- be solved in the current legal environment. Prior-art collection is one such issue. Yes, it is limited. No, it will not solve the whole software-patent problem. But it is something that can be done now.
As someone once said, "don't forget about the short term and mid term fights on our way to the grand finale, every patent defeated is one less the developers must concern themselves with..."
Paul E. McKenney (my thoughts, not necessarily those of my employer)
Posted Sep 21, 2006 9:26 UTC (Thu)
by nim-nim (subscriber, #34454)
[Link] (5 responses)
So true...
Setting up prior art databases will only up the arms race, concentrating power in large firms and specialized patent troll companies (which will be able to afford the human resources necessary to master this new tool), and making actual patent handling even more removed from R&D/developpers.
I imagine Kruchev's "We will bury you" felt good too. Would have been better off refusing to play the superpower game though.
My advice is : when you want to play David vs Goliath, make sure you actually are Goliath - the usual ending is not the one in the book. On the software patent front most patent lawyers are on the other side.
Playing by the patent office rules will get us nowhere.
Posted Sep 21, 2006 12:45 UTC (Thu)
by k8to (guest, #15413)
[Link] (4 responses)
Posted Sep 21, 2006 13:39 UTC (Thu)
by nim-nim (subscriber, #34454)
[Link] (3 responses)
Patents mean patent lawyers and patent offices. You can't get rid of them the way you can get rid of copyright lawyers by choosing a generic license (like GPL) and not reading protected software code. Regardless of whether you choose to pay patent lawyers to contest patents or prempt the fight by paying patent specialists to maintain a prior-art database you're effectively financing the patent system for zero win.
Prior art databases or patent pools aren't ways to get rid of the software patent costs. They're ways for patent lawyers and patent offices to make the ongoing costs indirect enough and diluted enough people do not notice them.
The OSDL does not have unlimited resources - every cent spent on this database won't get spent on other FLOSS initiatives. In other words, software projects will still foot the bill.
And it doesn't even remove the patent threat, as some patents will pass through the net and will be used against software projects.
Posted Sep 22, 2006 16:20 UTC (Fri)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link] (2 responses)
> - work on separating software IP law from biotech IP law,
This would require pushing through changes in USPTO regulations, perhaps also legislation. All the earlier comments about resistance to such changes being funded by use of existing patents apply to this -- in other words, resistance to existing patents in the short term is necessary to have a decent chance of pushing through reform in the longer term. In addition, at best, this change would require years. Nonetheless, had you suggested this a year or so ago, I would have agreed with you.
However, in the past year, some biotech trends have become clear. Recent advances point clearly to a convergence between genomics and software -- in essence, each cell is similar to a computer, with its software coded in DNA and RNA. So with a lot of work and more luck than anyone deserves, yes, you might split SW and biotech IP law so as to remove biotech opposition to SW patent reform. But by then, biotech will have become thoroughly emmeshed in a situation very similar to that of software patents -- anyone with a modest computer would be able to crank out biotech patents.
So, by the time this approach bore fruit, the effect will quite likely be to to cut us off from a new-found ally in the form of biotech firms dealing with their equivalent to software patents.
> - make clear patents have no place in software IP law,
Easy to say. But I am afraid this soundbite does nothing to convince me that you (or your more knowledgeable people) have a plan that has a chance of making a real difference here.
> - don't waste time trying to make software patents work.
Not sure exactly what you are getting at here, but I am not trying to make them work, I am instead trying to prevent them from harming F/OSS in the near term. I am also trying to give badly needed reforms a chance of avoiding being drowned by lobbying paid for by patent litigation.
---
Your other comments seem to be based on a misunderstanding. I do not advocate things like prior-art databases to the exclusion of other approaches. Many different approaches are needed, working together, in the short-, mid-, and long-terms. But I believe someone else made this point some years ago. ;-)
You might also be well-advised to carefully study US Patent #4,135,240 (long since expired, so in my personal opinion no longer any danger, but you should consult your lawyer if you are concerned -- and I am not a lawyer). This patent was filed in 1973 and granted in 1979, quite some time before software patents were valid in the US. Yet this is the "setuid" patent that became so infamous in the late 1980s (yes, "setuid" as in the setuid bit in UNIX file permissions). So, if all we do is abolish software patents (and don't get me wrong, I fully agree that this would be a great and wondrous achievement), how many "software" patents would really be eliminated? What would patent lawyers do to "dress up" software patents so as to appear to still be legal? If you were to take a careful look at existing software patents, you would very likely find that patent lawyers have been doing such "dressing up" for quite some time. (Of course, you may wish to consult a lawyer before reading patents that are still in force -- probably safer to select one that has been allowed to lapse, for example, at the 3.5-year renewal point. But again, I am not a lawyer.)
Be careful. It is a real world out there. Don't try to program it like you would a computer. Unless perhaps you are a "corewars" programmer.
Paul E. McKenney (my opinions, not necessarily those of my employer)
Posted Sep 22, 2006 18:29 UTC (Fri)
by nim-nim (subscriber, #34454)
[Link] (1 responses)
Which is exactly why accepting to fight on the patent lawyers field is ultimately a doomed endeavour. A clear "this is not patentable" order patent lawyers can not contest before judges is what's needed, not something they can wiggle out of because they know the rules better than your average judge or software person.
> Be careful. It is a real world out there. Don't try to program it like
And how would you qualify software people that think with their feeble grasp of current IP law they'll be better able to make use of a prior art database than the patent sharks out there?
Sure they can build it. Just like an engineer can design a better gun than the model current swat team use. Does it mean that once the better gun is built and on the market the engineer has a fighting chance against swat people?
Posted Sep 22, 2006 19:10 UTC (Fri)
by PaulMcKenney (✭ supporter ✭, #9624)
[Link]
Your swat-team metaphor applies to patent reform just as surely as it does to things like prior-art databases. In both cases, even the best of intentions do not necessarily lead to good results.
And refusing to countenance short-term action against patents will mean that your patent sharks will continue accumulating money with which to fight patent reform. If you don't like prior-art databases, fine and well. But tell us what short-term measures we should be using instead -- and why. The long-term strategies you are advocating simply cannot succeed without short-term action.
Paul E. McKenney (my opinions, not necessarily those of my employer)
Posted Sep 24, 2006 23:27 UTC (Sun)
by dps (guest, #5725)
[Link]
Last time I heard about it people have worked around software patents not being allowed by patenting a conputing device operating the algorithm. If someone then tried a microchip or different computer implementing the same alogrithm then they could except a lawsuit unless they licenced the patent.
I would agree with the veiw that the most beariful algorithms are mathematics and therefore should not be patentbale, period. In the real world this might not win the day, so at least ensuring patents really are non-obvious would help. This would make it less likely programmers tread on them IMHO :-)
I do not see what RMS's viable alternative for getting a showcase of bad patents and prior art together is. Prior art won't solve the software patent problem (NewsForge)
RMS need not present an alternative for prior art, since prior art won't solve the problem and is indeed being put up as a sham to convince European regulators that it's OK to go ahead with making software patents enforcible there. Look at the companies on OSDL's board: the largest software patent owners there are.Prior art won't solve the software patent problem (NewsForge)
RMS's alternative is for there not to be any software patents. This might not be politically feasible in the US, but it certainly is in Europe.
Actually, he was offering an alternative ...
This comment seems correct to me, but more of a case would need to be made to convince me that RMS's strategy is correct here. Actually, he was offering an alternative ...
Five implicit premises are on or near the table:
1. that the U.S. patent office will in the future always be on the side of those trying to get new patents;
2. that the existence of things like OSDL database will help persuade European Union legislators to favor patents there; and
3. that people putting energy into things like the OSDL database might otherwise devote their energy to anti-patent lobbying.
4. that the existence of such a database as a resource will help to make the same patents that would otherwise be granted stronger, rather than saving everyone a bunch of bother and nonsense by leaving them overly broad (and granted).
5. that no free software will get written, which otherwise would not have, because the authors or their employers are more comfortable with the relevant patent situation.
While "1" is true, the fewer bad patents granted, the better. If "1" were no longer true, then much of the backfire argument goes away as well. Making "1" no longer true by lobbying for change in the incentive structure of the patent office might be a more approachable goal than getting rid of software patents all together. I've got no opinion about the truth of "2" but it seems like something that needs more argument; it's not obviously true. The truth of "3" and "4" seems pretty questionable, and a little imagination should allow one to see that "5" is false.
In summary, it seems to me that the OSDL database could obviously do some overall good except if we believe the "backfire" argument. But the backfire argument rests on questionable supporting premises that RMS does not bother to defend in the linked editorial.
I don't think #1 is valid. The U.S. patent office might be an enthusiastic implementor of software patenting these days, but for many years refused to grant them. That refusal was reversed by the supreme court in response to a case brought by IBM. Our big friend, IBM, right? Well, IBM created this problem for us.Actually, he was offering an alternative ...
Actually, he was offering an alternative ...
Very good. But even that will probably take legislation.Actually, he was offering an alternative ...
Legislation - one possible outcome of lobbying - should be understood as a surer solution than an executive branch order, though the chief executive doesn't seem to agree. :(
Actually, he was offering an alternative ...
Contact your faithfull public servent from the 'House of Representatives' is the solution for us. That's specificly what these guys are for. Their purpose in life is to take up causes like this if there is enough of a grassroots movement for them.Actually, he was offering an alternative ...
> Of course even if the concept (making software patentsActually, he was offering an alternative ...
> invalid via legislation) is relatively simple, doesn't
> mean its going to be easy...
My point is that prior art simply isn't going to be effective. That's all.Actually, he was offering an alternative ...
In my own experience, if you can quickly put together a solid case, you can often convince the attacker to back off entirely. After all, they want easy money, not a hard-fought court battle. Even if they have already filed suit, the presence of solid prior art can help convince the judge to refuse to grant a preliminary injunction, which, if granted, would shut the defendant down completely. Such an injunction puts the defendant at a serious disadvantage in settlement negotiations, and can in fact force the defendant to quickly settle.Actually, he was offering an alternative ...
Prior art db necessary, as _part_ of our response to SWPats
Sticks and stones may not break our bones, but poor public perception certainly can.Prior art won't solve the software patent problem (NewsForge)
Sticks and stones may not break our bones, but poor public perception certainly can.Prior art won't solve the software patent problem (NewsForge)
I don't assume failure, I fear it. Though I certainly see your point. Prior art won't solve the software patent problem (NewsForge)
I would not feel the need to be critical of OSDL's efforts except that I feel they will do harm to Open Source.Prior art won't solve the software patent problem (NewsForge)
Understood. Though it isn't hard to argue that the OSDL solution is no solution at all, meerly a resource that makes it somewhat easier for the creators of open source software to defend themselves. In other words it is a poor second to real legislative action that would actually deal with the underlying issues.Prior art won't solve the software patent problem (NewsForge)
One HUGE problem I see with OSDL's prior art database is the Patent Office's definition of "inventive and non-obvious".Prior art won't solve the software patent problem (NewsForge)
Wol
Bruce, you state that the OSDL is run by the companies with the least interest in changing the patent system. I would argue that most elected representatives in European Union and United States are also 'run' by these companies too via donations, fancy trips, and all the other things that civilized nations gloss over bribery as. And so a simple lobbying campaign is not going to make changes unless the patent system becomes as important as other 'hot-item' poll numbers that representatives have to worry about every couple of years when they get re-elected.Prior art won't solve the software patent problem (NewsForge)
He wasn't offering an alternative, he was explaining what a certain project was not very useful.I'm with RMS on this
Prior art won't solve the software patent problem (NewsForge)
gets spun rapidly by the monied interests as "crank hippy protesters who never did an 'honest days work' in their lives anyway"
> To be honest, until people see on Boston Legal or some other mass produced show that software patents are a problem that affects them daily... it wont get poll numbers and without poll numbers representatives will feel fine taking money to protect the big industry companies.Prior art won't solve the software patent problem (NewsForge)
Prior art can be extremely useful to defendants in patent litigation. Please keep in mind that the patent-based attackers can (and, from what I understand, often do) take years to carefully build their case. The defendant may only be allowed a month or two in order to build a defense sufficient to convince the judge that a preliminary injunction is inappropriate. If the defendant fails to convince the judge, then the injunction will shut down the defendant, regardless of the merits (or lack thereof) of the attacker's case.Again, let's not forget patent-litigation defendants...
I'm all for finding prior art the purpose of helping patent-litigation defendants. But the way ODSL is structuring this thing, the prior art might just help people seeking software patents to write stronger patents.
Now if the ODSL just wants to collect prior art that will serve to undermine existing software patents, that could be a good thing.
Again, let's not forget patent-litigation defendants...
Since we cannot predict who the defendants will be, the only way to get the prior art to them is to make it public. Since it must be public, then, yes, it might well be used for nefarious purposes. But the possibility of nefarious use is outweighed by the needs of the defendants.Again, let's not forget patent-litigation defendants...
Unless I'm missing something (certainly possible), while a prior art database might help applicants write stronger patents, that would be largely because they would also be narrower patents, since the authors would have to claim around the prior art.Again, let's not forget patent-litigation defendants...
> So, if you really want patent reform, up to and including abolition of Again, let's not forget patent-litigation defendants...
> software patents, you need to (1) follow the money and (2) shut down
> the money flow.
The current patents aren't necessarily such a problem (they expire),
but the ever expanding number of them is. The money flow is from
the companies filing for patents to the patent office. If this were
stopped or even better, reversed, the current patent debacle should
get a quick stop.
One way to get this money flow reversed would be for patent office
to be held responsible for the patents (government granted monopoly
rights) companies buy from it. If a patent it has granted gets
overturned in court, the patent office should in my opinion return
the money received from the patent application AND it should also pay
the litigation costs at *both* sides. The losing side pays only the
damages/royalties. The litigation costs are so expensive that patent
office should soon see the "wisdom" of granting frivolous patents...
I disagree -- current patents are a problem. They cause huge amounts of money to flow to patent attackers, who can use some of that money to resist reforms -- including reforms like your USPTO-pays proposal. (I am not coming out for or against your suggested reform, as I have not had much time to examine it for possible abuse or other unintended consequences.)Again, let's not forget patent-litigation defendants...
I have to admit, I'm with RMS on this front. The problem with software patents is not that there are patents ignoring prior art. The problem is that you can't write decent software without using many concepts, algorithm and mechanisms. As an individual you can't afford to check, which of them are violating patents. As software developer you don't even have the right education for that. I think Lawrence Lessig cited someone else, who observed that the easy proof for the failure of software patents is, that software developers don't look up patents, while they are developing software.Prior art won't solve the software patent problem (NewsForge)
There are many problems with software patents. Patents ignoring prior art is one of these problems -- and is a key problem, since it is a way for patent-based attackers to fund resistance to reforms that could resolve other problems with software patents. And, unlike most of the other problems surrounding software patents, the prior-art piece can be solved without new laws or legal precedentsPrior art won't solve the software patent problem (NewsForge)
Collect prior art only for *existing* patents
In addition, as noted before, prior art is desperately needed by patent-litigation defendants.
It might well be good to collect prior art only for the purpose of challenging existing patents. However, there is no reasonable way to actually do this in practice. The reason for this is that we have no way of knowing who the defendants in patent litigation will be, nor do we know in advance which patents will be used in that litigation. Therefore, resisting existing patents requires that the prior art be made public so that the defendants can find it quickly and easily -- they don't have a whole lot of time to put their case together.Collect prior art only for *existing* patents
Collect prior art only for *existing* patents
PubPat does great work, no doubt about it. The problem is that they can take only only a very few patents. Like prior-art databases, they are an important piece, but are in no way a complete solution. In any case, I am surprised that you give PubPat as an example -- seems to me that by your own line of argument, PubPat is strengthening all the patents that it does not kill (VFAT being a case in point). (Just for the record, and as noted earlier, I disagree with your line of argument, whether applied to PubPat or applied to prior-art databases.)Collect prior art only for *existing* patents
Of course, another problem is that the amount of available art for software is so huge that I suspect OSDL will do little more than scratch the surface. In that case, the OSDL program will neither substantially strengthen nor substantially weaken patents, and will just serve as political window-dressing that will make real patent reform more difficult.
Collect prior art only for *existing* patents
Self-fulfilling prophesies, anyone? ;-)Collect prior art only for *existing* patents
"There are many problems with software patents. Patents ignoring prior art is one of these problems -- and is a key problem, since it is a way for patent-based attackers to fund resistance to reforms that could resolve other problems with software patents. And, unlike most of the other problems surrounding software patents, the prior-art piece can be solved without new laws or legal precedents"Prior art won't solve the software patent problem (NewsForge)
Wol
Either legislative action or judicial precedent, but yes, I do agree that many problems with software patents do require long-term changes in the legal environment.Prior art won't solve the software patent problem (NewsForge)
"I have to admit, I'm with RMS on this front. The problem with software patents is not that there are patents ignoring prior art. [...] I think Lawrence Lessig cited someone else, who observed that the easy proof for the failure of software patents is, that software developers don't look up patents, while they are developing software. [...] Software patents simply mean there cannot be open-source software, which is not backed by big companies like Intel or IBM, which have huge patent portfolios on their own."Prior art won't solve the software patent problem (NewsForge)
What strategy will get us somewhere? Be convincing.Prior art won't solve the software patent problem (NewsForge)
As other people more knowledgeable than me have written: Prior art won't solve the software patent problem (NewsForge)
- work on separating software IP law from biotech IP law,
- make clear patents have no place in software IP law,
- don't waste time trying to make software patents work.
OK...Prior art won't solve the software patent problem (NewsForge)
> If you were to take a careful look at existing software patents, youPrior art won't solve the software patent problem (NewsForge)
> would very likely find that patent lawyers have been doing such
> "dressing up" for quite some time.
> you would a computer.
Let's just say that I have learned some hard lessons over the past 3.5 years that have caused me to greatly increase my estimate of what lawyers (including patent lawyers) are able to wiggle out of -- and into, for that matter. And please do read #4,135,240 for an example of the wiggling possible. Your comments lead me to believe that you have not yet done so, or perhaps have not yet thought carefully about the implications.Prior art won't solve the software patent problem (NewsForge)
At least in th EU prior art can be powerful. In one case for the price of a few airfares a small non-profit managed to get a patent application backed by a huge multinational and the US government rejected due to prior art. (This was a biotechnology patent but that is beside the point.)Prior art can work in the EU