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Prior art won't solve the software patent problem (NewsForge)Prior art won't solve the software patent problem (NewsForge)Posted Sep 18, 2006 22:10 UTC (Mon) by kune (guest, #172)Parent article: 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. 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.
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.
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Prior art won't solve the software patent problem (NewsForge) Posted Sep 18, 2006 23:04 UTC (Mon) by PaulMcKenney (subscriber, #9624) [Link] 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
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)
Collect prior art only for *existing* patents Posted Sep 18, 2006 23:23 UTC (Mon) by stevenj (guest, #421) [Link] In addition, as noted before, prior art is desperately needed by patent-litigation defendants. 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.
Collect prior art only for *existing* patents Posted Sep 18, 2006 23:45 UTC (Mon) by PaulMcKenney (subscriber, #9624) [Link] 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.
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.
Collect prior art only for *existing* patents Posted Sep 19, 2006 0:14 UTC (Tue) by stevenj (guest, #421) [Link] 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.
Collect prior art only for *existing* patents Posted Sep 19, 2006 0:45 UTC (Tue) by PaulMcKenney (subscriber, #9624) [Link] 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.)
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)
Collect prior art only for *existing* patents Posted Sep 19, 2006 0:17 UTC (Tue) by stevenj (guest, #421) [Link] 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 Posted Sep 19, 2006 0:46 UTC (Tue) by PaulMcKenney (subscriber, #9624) [Link] Self-fulfilling prophesies, anyone? ;-)
Paul E. McKenney (my own opinions, not necessarily those of my employer)
Prior art won't solve the software patent problem (NewsForge) Posted Sep 19, 2006 7:51 UTC (Tue) by Wol (guest, #4433) [Link] "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"
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,
Prior art won't solve the software patent problem (NewsForge) Posted Sep 19, 2006 14:25 UTC (Tue) by PaulMcKenney (subscriber, #9624) [Link] 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.
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)
Prior art won't solve the software patent problem (NewsForge) Posted Sep 21, 2006 9:26 UTC (Thu) by nim-nim (subscriber, #34454) [Link] "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."
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.
Prior art won't solve the software patent problem (NewsForge) Posted Sep 21, 2006 12:45 UTC (Thu) by k8to (subscriber, #15413) [Link] What strategy will get us somewhere? Be convincing.
Prior art won't solve the software patent problem (NewsForge) Posted Sep 21, 2006 13:39 UTC (Thu) by nim-nim (subscriber, #34454) [Link] As other people more knowledgeable than me have written:- 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.
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.
Prior art won't solve the software patent problem (NewsForge) Posted Sep 22, 2006 16:20 UTC (Fri) by PaulMcKenney (subscriber, #9624) [Link] OK...
> - 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.
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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)
Prior art won't solve the software patent problem (NewsForge) Posted Sep 22, 2006 18:29 UTC (Fri) by nim-nim (subscriber, #34454) [Link] > 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.
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?
Prior art won't solve the software patent problem (NewsForge) Posted Sep 22, 2006 19:10 UTC (Fri) by PaulMcKenney (subscriber, #9624) [Link] 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.
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)
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