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Free QA for patent trolls? Why? (LinuxWorld)
Don Marti questions the Peer to Patent Project on his LinuxWorld weblog. "The Peer to Patent Project would give the bandits flintlocks. Instead of facing bandits armed with patents likely to be bad, we'll be facing bandits who are confident in their weapons. If you think the problem of mostly-bad software patents is bad today, try peer-reviewed patents that are more likely to go off."
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Free QA for patent trolls? Why? (LinuxWorld) Posted Jun 19, 2007 16:55 UTC (Tue) by BrucePerens (guest, #2510) [Link] I've been having trouble with this for a long time, too. Why do we want to help the patent holders have more solid patents that they would be more sure of being able to litigate? Why do we want to expose community developers to treble damages for knowing infringement, because they worked on these patents and then the patents were granted?Bruce
Free QA for patent trolls? Why? (LinuxWorld) Posted Jun 19, 2007 17:27 UTC (Tue) by hozelda (guest, #19341) [Link] Add the cost associated with this, too. We'd be doing millions of dollars' worth of patent research per patent for someone else to come in and have an easier time collecting even more money than they would otherwise.
This is an attempt to save the patent system. Software patents may survive, but I don't want to help... unless of course, there was an understanding/contract/license where all patents we certify as probably legit would automatically be donated to protect FLOSS [I don't see this idea as just stated working but maybe it can be developed further.]
Free QA for patent trolls? Why? (LinuxWorld) Posted Jun 20, 2007 17:53 UTC (Wed) by mmarq (guest, #2332) [Link] "" ... unless of course, there was an understanding/contract/license where all patents we certify as probably legit would automatically be donated to protect FLOSS ""
IANAL, but that could be GPLv3.
Well not every patent, but *those* that are contributed to OSS V3 repositorys will have "no fee" attached... and hence forward donated.
Even if the original holders, institutions or individuals, go 'kaput', and M$ buys all their remains, they cant invalidate a prior contract, because the license as no AFAIC read (havent studied it yet) a termination clause based on time, or expressed conditions except it would be "no-fee" for patents.
Of course M$ buying a OSS operator with many patents on OSS repositorys, could unilaterally cancel the GPL contract, from a given date forward but they could not sue anyone for violation.
Again... IANAL, but GPLv3 could have the same 'PAC-MAN' attitude, in M$ parlance, with their 'no-fee' clause toward patents, as v2 had towards copyrights.
Software patents may survive but if v3 will be predominant and more proficient than anybody else in software development, then we can expect the termination of the present 'status quo'.
If OSS ends up stagnant, with the community divided, standardless upon something crucial as the desktop, with no v3 'no-fee' like license in ubiquitous adoption, conditions certainly leading to no innovation, then is only a question of time before the patent issue hit hard.
That last stagnant condition is, IMO, what M$ tries to achieve with their deals( divide and conquer), promoting heavy differentiation for their cooperation, and hence forward in their suppositions, much better conditions for a OSS player to gain market acceptance... and trowing also patent protection, so no need for a v3 'no-fee' like change of license.
Free QA for patent trolls? Why? (LinuxWorld) Posted Jun 21, 2007 11:21 UTC (Thu) by hingo (guest, #14792) [Link] I agree, in general I don't see how this solves anything.For discussion though, this might make sense if the system was such that:
But my understanding is that this is not how the Peer to Patent project works?
Free QA for patent trolls? Why? (LinuxWorld) Posted Jun 21, 2007 20:19 UTC (Thu) by lakeland (subscriber, #1157) [Link] You're right, that's not how it works (currently).
My feeling is this is a huge step by the USPTO, admitting you have a problem is usually harder than finding a solution.
What we have now is the FSF community and others are essentially working as research assistants for patent clerks. That isn't exactly ideal, but I feel the USPTO has taken a huge step and it is up to us to take a step towards their position even if it isn't the optimal use of our, or anybody else's, time. Basically I'm not disagreeing with you intellectually, I just think that after their big concession we should be swallowing some pride.
To a point, I disagree with Bruce about it leading to harder-to-refute patents. You start throwing away a huge amount of cruft and what is left becomes available for more general scrutiny. If it all works as planned then I expect you will see nasty surprises in the IT community about just how tightly defined 'obvious' really is, and a number of novel but technically obvious patents not only getting through but also being vetted. I am hoping this is a good thing.
One aspect of the current setup that greatly frustrates me is the level of deliberate confusion that has been encouraged. For whatever well-justified reasons, the USPTO has actively encouraged (in the darwinian sense) patents to be as confusing and obscure as possible. I've seen scientific journals like that too - where the easiest way to get an article accepted is to confuse the reviewer. I think that unless the USPTO changes this it will amost certainly doom peer2patent to failure because of the amount of mental effort necessary to comprehend the trivial claims in a patent. Essentially, while patents are so hard to understand, the barrier to finding prior art for them is too high.
This would be an easy situation to fix - the USPTO just adds, and uses frequently, another patent outcome - "insufficiently clear" - with the implication that the patent is rejected without prejudice. With a strong disincentive for obscuring inventions, I think that both the USPTO and the peer2patent will both have a decent chance of affordably invalidating particularly stupid parents.
Sadly, I don't see any moves by the USPTO in this direction, so I guess we (peer2patent) will just have to struggle with the brain teasers more.
Free QA for patent trolls? Why? (LinuxWorld) Posted Jun 22, 2007 6:46 UTC (Fri) by hingo (guest, #14792) [Link] Yes you're right. As a bridge building effort I think this is great and on some kind of intuitive level I always thought this is good - just couldn't get my finger on it. In this sense I think it is good that especially the Groklaw community seems to be embracing this.And of course, as a fundamental belief we all share: more openness is always a good thing right?
Free QA for patent trolls? Why? (LinuxWorld) Posted Jun 22, 2007 20:04 UTC (Fri) by giraffedata (subscriber, #1954) [Link] I agree, in general I don't see how this solves anything. I assume you mean it doesn't solve anything related to the problem of people excluding others from using software-realized inventions. It probably doesn't, but it's not aimed at that problem. It's aimed at the problem of the great cost of invalid patents -- patents that are invalid under current law. Even when a patent holder ultimately loses a lawsuit because prior art comes to light, it costs the alleged infringer. Increasing the quality of issued patents will increase overall wealth, and I don't think that increase will go the patent trolls. I think it will go mostly to the people from whom they buy the valid patents.
Free QA for patent trolls? Why? (LinuxWorld) Posted Jun 23, 2007 7:46 UTC (Sat) by hingo (guest, #14792) [Link] Yes but, on the other hand there is a fear that this effort will not significantly decrease the number of bad patents, it will just help writing them in a way that they look better in the end, but are still patenting obvious or or nonsensical things.I believe this is a genuine concern, but at the same time I realise that there are some small positive aspects with Peer to Patent, one of which is exactly what you are pointing out and most of which have now been mentioned in this comment thread. So in short, this is probably a good thing, but unfortunately it doesn't solve the problems we would like it to solve.
Would Statutory Invention Registration (SIR) be a useful tool for the free software community? Posted Jun 19, 2007 18:13 UTC (Tue) by atai (subscriber, #10977) [Link] Statutory Invention Registration supposedly allows an invention to be registered in the official records of the patent office and disallows others from later patenting the same invention. The inventor has to pay the fees for filing and processing a SIR.It has been rarely talked about in the free software community. Is it a good idea to encourage the community to file SIRs on all the inventions or new technologies in free software projects? It may be easier to lobby for the government to lower (or to waive) the fees for filing an SIR?
IMHO, no. Posted Jun 19, 2007 19:07 UTC (Tue) by dmarti (subscriber, #11625) [Link] SIR is similar to the Peer to Patent Project -- it gets more info into the hands of the patent examiner before the patent issues, and helps the patent troll design around your prior art. Better to publish your prior art in a way that (1) proves you published it on a certain date and (2) is hard for the patent examiner to search.
Large numbers of invalid patents are more of a problem for large, deep-pocketed companies -- trolls can use them to file nusiance infringement suits. Small numbers of valid patents are more of a problem for free software projects -- companies can use them to exclude free software from important functionality such as crypto and compression techniques.
IMHO, no. Posted Jun 19, 2007 23:10 UTC (Tue) by kirkengaard (subscriber, #15022) [Link] In your humble opinion, then, it is better to leave the system obscure and dangerous, and even help make it more obscure and dangerous, by removing information from the patent authorities that would help invalidate and obviate many patents that shouldn't exist. Let the trolls continue to file patents that threaten our livelihood, and deny the system the information that could remove the threat. You like the sword over your head?
IMHO, no. Posted Jun 20, 2007 4:12 UTC (Wed) by dmarti (subscriber, #11625) [Link] The patent authorities are not going to use the information you give them to protect you from patents. That's not what USPTO management gets its bonuses for. Any additional information they get, they're going to use it to help patent applicants get solider, more dangerous patents.
USPTO is not on your side.
If you do have good prior art for a patent, try a little reverse FUD: "I know of prior art for patent number n, and I'll say where you can find it (in your public library/on a Sunsite archive CD/in a Usenet archive) if the holder sues any free software project."
Plain English Posted Jun 20, 2007 6:41 UTC (Wed) by michaeljt (subscriber, #39183) [Link] One difficulty there is that software patents are often not always comprehensible to the layman (i.e. a programmer, not a lawyer), and also (up until now at least) often badly publicised. Perhaps what is needed is an independent site which lists known software patents along with a short, plain English summary of what they actually do, to help people find prior art which they can keep on their shelf until it is needed.
Plain English Posted Jun 20, 2007 10:16 UTC (Wed) by michaeljt (subscriber, #39183) [Link] Note: that site could also allow people who have prior art "on their shelf" to register in some way, so that could be contacted if there was need of their prior art.
Plain English Posted Jun 20, 2007 13:19 UTC (Wed) by epa (subscriber, #39769) [Link] The trouble is, by looking at that site you might accidentally find out about a software patent infringed by your program, and then you'd be liable for knowing infringement. It is better not to know. If someone sues you, you can start challenging their patent then and searching for prior art - not before.
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