Akademy: Defensive publications [LWN.net]

By Jake Edge
July 4, 2012

One way to reduce the number of software patents that are issued is to document interesting ideas before someone locks them up. Defensive publications are a way to express those ideas in an accessible form for patent examiners so that they will be aware of prior art during the application process. Open Invention Network (OIN) chief operating officer Raffi Gostanian came to Akademy in Tallinn, Estonia to describe defensive publications, explain how OIN can help in the process of creating them, and to encourage KDE developers to start filing them.

OIN has a broad mandate to create a patent "no-fly zone" around Linux, Gostanian said. It does that by purchasing patents which can be used by members. It entices companies to join by having interesting patents available. OIN focuses on particular segments of the market, like finance or automotive, to put together groups of patents in those areas. Companies can join OIN if they promise not to use their patents against Linux.

As part of the Linux Defenders project, OIN has also worked on various efforts to invalidate patents either before or after they issued (through the Peer to Patent projects). That depends on finding prior art that shows the idea was not new at the time of the application. Defensive publications are a way to codify ideas from the free and open source software world that could be used to reject patent applications.

Defensive publications don't have to be about a program or something that has been implemented, they could just be an idea that someone has (or has had). Linux Defenders will publish the defensive publications in a database that can be searched by patent examiners (on ip.com) so that patent applications will be stopped from proceeding, he said.

Patent suits

There have been lots of patent suits already, and there will be more. Typically, it is not a single patent that is used in lawsuits, but a cluster of related patents. There are entities out there antagonistic toward Linux, "we know that", Gostanian said. It is difficult for some to see how they can "compete with free", so they turn to the court system. One way to try to combat open source is to claim that "you get what you pay for", but Android serves as a counterexample, which is part of why it attracts so much lawsuit attention.

Gostanian pointed to the lawsuit filed by Microsoft against Barnes & Noble for its Android-based Nook tablet as an example of the tactics used. There was a "war of words" between the companies about the suit, but in the end, Barnes & Noble ended up in a relationship with Microsoft. He is certain that the next Nook will not be running Android, which shows that sometimes suits are filed to force outcomes other than one side paying patent royalties.

Another example he cited was Microsoft's FAT patent (really a patent on a way to have long file names in VFAT), which was applied for in 1996 and granted in 1998. It went through the reexamination process, which upheld the patent; so did several courts, which emboldened Microsoft, who went on to use it for patent aggression.

But, more recently, an administrative law judge for the US International Trade Commission (ITC) ruled that the patent is invalid based on a 1992 post by Linus Torvalds. In that note to comp.os.minix, Torvalds essentially describes the patented technique as an idea for the Minix filesystem. It was not implemented, but just the description of the idea was enough for the judge.

Had the patent examiner known of that, it is likely the patent would not have been granted. In that case, there would have been "less FUD around Linux" and the lawsuits would not have happened, Gostanian said.

Attacking the root cause

When you have a problem—bad software patents being issued for example—you want to look for a root cause. In this case, he asked, is the real problem that people are filing for junk patents? That is sometimes true, but in most cases people think they are describing something innovative.

It takes three or four years after an application is filed before a patent examiner looks at it; when they do, they have around eight hours to consider the patent. That is the total amount of time they can spend, which includes some amount of back and forth with the filer. There are things they rely on to try to find prior art, but that generally does not include scientific publications, technical reports, conference proceedings or talks, blog postings, mailing lists, and so on. The examiners don't have a lot of time, and it would be difficult for them to find important prior art in that time. The idea behind defensive publications is to make it easier for them to do their job, Gostanian said.

Defensive publications are "in a sense" the "anti-patent", he said. By taking various concepts and ideas that have already been "invented" and making them easier to find, those ideas can get in front of the examiners during the application process. Linux Defenders will be working with teams or individuals to help them prepare defensive publications to be filed at ip.com. The filing cost will be picked up by Linux Defenders as well. The idea is that it is easier (and cheaper) to invalidate a patent before it is granted rather than doing so once it has been.

Unlike patents, defensive publications are fairly simple documents. Typically one or two pages of text is all that is required, along with a figure that describes the interaction between the components. It "could literally take two hours" to create one, he said. The short length is helpful to the examiners who don't want to wade through a long description. Defensive publications can certainly be longer than a page or two, but they don't need to be, he said.

Gostanian encouraged anyone in the audience with an "idea that you think is cool" or one that they are enthusiastic about to consider defensive publication. It doesn't matter if the idea has ever been implemented, and additional defensive publications can be made on newer iterations of the idea, each of which has the potential to stop patents.

It costs nothing to do a defensive publication as OIN will pay for filing those that come in via Linux Defenders. In addition, Linux Defenders will review and assist in writing the document. "Whatever's necessary, we'll do", Gostanian said, to assist in getting more defensive publications filed.

Creating defensive publications is something concrete that developers or projects can do to help fight bad patents. Each submission to ip.com gets a public number assigned to it that can be used in resumes or CVs to publicize one's involvement, though defensive publications can also be submitted anonymously as well. While there are lots of different opinions about the patent system, it isn't going away anytime soon—if ever—so this is one thing that can be done to reduce patent problems in the interim.

There are tens of thousands of defensive publications in existence already, Gostanian said in answer to a question from the audience, though most have not come via OIN. This is the first conference he has spoken at to publicize the effort, though he will be speaking at GUADEC and other team members will be attending COSCUP to help bring the message to developers at those events. While "tens of thousands" sounds big, he said, they are scattered around in many different technical fields. Linux Defenders would like to see a more concentrated effort in the areas surrounding Linux and open source, eventually resulting in tens of thousands being filed via the project.

[ The author would like to thank KDE e.V. for travel assistance to Tallinn for Akademy. ]

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The root cause

Posted Jul 5, 2012 9:55 UTC (Thu) by Yorick (subscriber, #19241) [Link]

So going after the root cause would mean to work to abolish the patent-system altogether. No Quarter.

Oh yes, no question about it. However, patents may be a bit like nuclear weapons or trade tariffs in that unilateral abolishment may be perceived as a disadvantage. The solution is of course multilateralism, but it's been somewhat unfashionable lately.

The main advantage of a prior-art database is that it is very cheap, both to run and to use. It may not be as legally powerful as a "defensive patent", but applying for one is vastly more expensive than adding a quick note to the database.

Nice set of quotes, by the way, the one by Koechlin-Geigy in particular. Are they from your own research?

The root cause

Posted Jul 5, 2012 10:58 UTC (Thu) by rvfh (subscriber, #31018) [Link]

> So going after the root cause would mean to work to abolish the patent-system altogether. No Quarter.

What if you consider research in investment because you can then apply for a patent and thus get a return on your investment? Not having patents may lead to less research from private companies, because their ideas would be stolen as soon as they make a product.

As an example, Philips and the Carminat group used to develop GPS-based navigation systems in the nighties, when it was hard and expensive. Not sure they got much back, as when things started picking up hardware was becoming cheaper and more powerful and the Philips navigation looked rather like LWN.net (old-style, though high quality) while the others more like to Google+ (latest AJAX beauty, but content needs sorting) ;-)

The root cause

Posted Jul 5, 2012 14:57 UTC (Thu) by felixfix (subscriber, #242) [Link]

I personally do not believe that either patents or copyright are incentives for innovation. Partly this is because innovation existed long before patents and copyright. Mainly it is because resources spent on patents is resources not spent on innovation. Patents and copyrights show themselves only at the end of the innovation which they claim to protect, which is how much of a head start that company has on the competition. When competitors merely copy instead of working their own innovations, they do not have the same solid background of understanding and cannot use the copied knowledge to leapfrog the originator. Further, the harder the research that produced the patent, the more important the patent, so we are told, but this also means that copying is that much harder too, thus making the patent less worthwhile.

I said "mainly" for that second reason, but that's not true. Mainly I despise patents and copyrights because the boundaries are so vague as to open up all the abuse we have seen. Steve Jobs took it as a personal affront that Google would dare challenge the iPhone, and Apple now doesn't seem inclined to stop the systemic abuse he started. They are not the first, of course. Any gain to society due to patents is surely far outweighed by all these crazy lawsuits. Oracle and the phone wars are just the latest manifestation. Copyrights are no better, not only because it's impossible to be definitive as to the difference between fair use and plagiarism, "inspired by", "based on", and so on. But worse is that music especially has always been inspired by other music. To think it proper to lock up music for 75 years after the writer dies is just bizarre.

Copyrights especially offend me for the idea that someone can write a song and lock up royalties for 75 years after he dies. It's an interesting income-redistribution scheme, but it's hardly beneficial to anyone, especially not society.

The root cause

Posted Jul 5, 2012 23:56 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

When competitors merely copy instead of working their own innovations, they do not have the same solid background of understanding and cannot use the copied knowledge to leapfrog the originator.

I assume you're implying that a competitor will innovate instead of copy because of this. I don't see why - you can make a great business out of copying, because even if your production expenses are higher and your quality lower than if you had invented it yourself, you're saving a ton of money on the inventing.

Further, the harder the research that produced the patent, the more important the patent, so we are told, but this also means that copying is that much harder too

I don't see the connection between hardness of research and of copying.

I believe there exist very profitable businesses in copying without innovating, either by crooks or by offshore people not subject to patents.

The best example I can think of is a drug. It typically costs $200 million dollars to invent one -- doing all the testing required to prove it is safe and effective, and the copier can skip all of that and generate the same molecule. The inventor would need a 10-20 year head start get that investment back and the copier can probably be on the market in a less than a year. So which would you choose, if you legally could: to be an inventor or a copier?

As for innovation existing before patents did, I don't think anyone is arguing lack of patents would extinguish all innovation, and that doesn't help with the question, "would people innovate as much today if there weren't patents as they do with them?"

The root cause

Posted Jul 15, 2012 17:19 UTC (Sun) by steffen780 (guest, #68142) [Link]

You've got the question, or more accurately the burden of proof, the wrong way round. The patent people and their apologists want a superficially ridiculous monopoly on ideas (ie. on part of people's brains). They claim this causes more innovation to happen. They need to provide the evidence that this is true - not the other way around. Patents have existed for generations, if they truly were as useful as their proponents claim there would be so many studies demonstrating this that you wouldn't be asking a question. So, where are the studies? Where is the evidence? Same for copyright, where on earth is the evidence? I have certainly never seen any, in any field, for patents nor for copyright.

The root cause

Posted Jul 15, 2012 19:35 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

You've got the question, or more accurately the burden of proof, the wrong way round.

Well, the question I stated is in fact the question that came up in this thread, that we would like to answer, so I don't know what conversation you're trying to have here.

(The question I assume you're referring to is what I worded in the last sentence of the post to which you replied: "would people innovate as much today if there weren't patents as they do with them?")

The patent people and their apologists want a superficially ridiculous monopoly on ideas (ie. on part of people's brains).

I believe you're setting up a straw man here. I don't believe a significant number of patent apologists claim that. Virtually everyone I see says the superficially ridiculous monoplies on trivial ideas that are happening in the current patent system are wrong. IBM, which has been granted more US patents than any other inventor in each of the last ten or so years, has called for patent reform. I believe IBM has said it would prefer a system in which, among other things, IBM got only a fraction of that number (because most of IBM's patents are trash just like everybody else's).

It's not superficially ridiculous to say that some innovation is motivated only by the possibility of recouping investment through the use of a patent. So I don't see any reason to place the burden of proof of whether that's true on the "yes" side. And it's possible no studies exist because it's too obvious.

The root cause

Posted Jul 16, 2012 16:56 UTC (Mon) by steffen780 (guest, #68142) [Link]

> Well, the question I stated is in fact the question that came up in this thread, that we would like to answer, so I don't know what conversation you're trying to have here.

I'm trying to get patent opponents to take a much more aggressive stance, which IMHO includes attempting to get the idea across that it is not on us to disprove patents. Of course if someone does that, that's also great, but in terms of philosophy and constitutional law I think it is a very important point.

> Virtually everyone I see says the superficially ridiculous monoplies on trivial ideas that are happening in the current patent system are wrong.

Sorry we've got a misunderstanding here - I wasn't referring just to trivial ideas. I was referring to all patents. I also wasn't calling trivial patents superficially ridiculous, I was referring to the whole system of government-granted monopolies.

> It's not superficially ridiculous to say that some innovation is motivated only by the possibility of recouping investment through the use of a patent. So I don't see any reason to place the burden of proof of whether that's true on the "yes" side. And it's possible no studies exist because it's too obvious.

Of course some innovation is motivated solely by the hope of extracting profit from a government-granted monopoly. As you say, that's just obvious. The question is whether these monopolies are a net benefit for overall society:
a) Whether they do cause a net increase in innovation.
b) If so, whether the benefits of that increase outweigh the damage caused by the monopolies (e.g. effectively prohibiting free software in the mobile sector, or unavailability of drugs in poor countries, or sucking competent engineers out of actually innovating and making them patent officers - after all, only someone competent in the field can accurately judge the level of innovation).
c) If not, whether something can be done to reduce the damage, so that the benefits outweigh the damage.

Since monopolies generally are terrible for a capitalist society (after all, how can market forces work when there is no market?) the burden of proof that ideas are an exception clearly lies on the people who want the monopolies. To my knowledge (admittedly, I haven't looked hard at all) no study exists to support the claim that the patent system is beneficial. However, there have been studies that claim to have shown that the patent system causes net damage.

The root cause

Posted Jul 16, 2012 19:55 UTC (Mon) by giraffedata (subscriber, #1954) [Link]

The question is whether these monopolies are a net benefit for overall society:

OK, then, that's a far deeper and more important question than I thought I was hearing. Something that's "superficially ridiculous" doesn't even bear investigating; you can be satisfied it's wrong just by looking at it.

I'm about as great a supporter of free market capitalism as there are, and even I wouldn't say monopolies are superficially ridiculous. I had to be taught by scholars to hate them.

Incidentally, by referring to patents qua patents as monopolies on ideas, you construct a strawman argument even if we exclude the trivial ones, because patents were never intended to be, and don't have to be, monopolies on ideas. I was in a patent law class that spent the whole first day stressing, "you can't patent an idea; you can only patent an invention." And the words ring in my ears, "An invention is a an idea reduced to practice." Edison, who kind of epitomizes invention, said it as, "invention is 1% inspiration and 99% perspiration," where the perspiration is what the patent stops other people from exploiting for free.

I'm not a patent lawyer, but it sure seems to me modern patent examiners took a different class. I've never been able to reconcile what I learned in that class from what's actually happening. But anyway, the point is that it's conceivable a patent system could exist that doesn't grant monopolies on ideas, so you can't attack patents just by attacking the concept of monopolies on ideas.

The root cause

Posted Jul 16, 2012 21:08 UTC (Mon) by nybble41 (subscriber, #55106) [Link]

> I was in a patent law class that spent the whole first day stressing, "you can't patent an idea; you can only patent an invention." And the words ring in my ears, "An invention is a an idea reduced to practice."

The problem with this reasoning is that the patent doesn't cover a _specific_ device or instance of a process, it covers all devices or all processes which happen to implement the ideas described in the patent. The monopoly isn't granted over a concrete good or service, or even exact copies, but over the _idea_ which encompasses all similar goods and services.

It would be true enough to say that the patent is _infringed_ by reducing the patented idea to practice, without a license. An abstract concept cannot infringe; for that you must build a device, or implement a process, based on the same idea. However, it is the idea which the patent monopolizes.

Or I suppose you could say that a patent grants you a monopoly over _other_ people's inventions, superseding (and infringing on) their own property rights, if those inventions happen to include a reduction to practice of the idea described in the patent. However, that puts patents in such an obviously bad light that their proponents would probably rather just say that patents cover ideas in the first place.

The root cause

Posted Jul 16, 2012 21:46 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]

> The problem with this reasoning is that the patent doesn't cover a _specific_ device or instance of a process, it covers all devices or all processes which happen to implement the ideas described in the patent.

If the idea described in the patent is very general then you have a problem.

i.e. if the patent is "how to cure rubber" it's bad

But if the idea described in the patent is specific, it can be worthwhile and doesn't prevent other people from achieving the same result through different means

i.e. if the patent is "how to cure rubber by following this process for calculating how much heat you apply to the rubber" it can be good.

This doesn't prevent someone else from inventing another way to cure rubber, they just can't use that specific approach to the problem. If they come up with a different way of calculating how much heat to apply, that can be worth a second patent.

The root cause

Posted Jul 16, 2012 22:13 UTC (Mon) by steffen780 (guest, #68142) [Link]

AIUI "invention" is simply a subset of "idea". In practice the notion of "subset" is becoming increasingly irrelevant, everywhere in the world. As for the quote, yes, it's a great one. In my opinion it is one of the best arguments against patents in the real world - they don't actually protect just the perspiration. If someone else has the same inspiration independently and also does all the perspiration, they're still legally prohibited from profiting from it.

Copyright is for protecting the perspiration - patents protect the inspiration. I'm not a big fan of copyright either, but I suppose I could conceive a copyright system that would at least be worth considering, but whilst a patent system satisfying my constraint a) might be conceivable, I cannot see one that satisfies b), not even with c).

Take medicines as an example - why should a company be barred from taking your patent, doing all the safety studies and so on (thereby doing the perspiration), and then selling the drug? Sure it'd be inefficient, but these kind of inefficiencies are a given in capitalism. Its point is competition - who can do the same task most efficiently.

The root cause

Posted Jul 18, 2012 3:25 UTC (Wed) by giraffedata (subscriber, #1954) [Link]

If someone else has the same inspiration independently and also does all the perspiration, they're still legally prohibited from profiting from it.

I believe that is only for reasons of practicality. The principle of patents does not require that independent invention be considered a patent infringement (quite the opposite), but we know it would be extremely difficult to tell whether someone's invention was independent if the work happened after the patent holder's work was published.

I don't see that as an essential part of patents; if the law merely presumed a post-patent practice of the invention was a copy and allowed the second inventor to prove it was independent, that would still be a patent system. My point is that this quirk of patents isn't enough to oppose the entire concept.

Incidentaly, assuming a patent system does not grant patents for obvious inventions, there isn't really much incentive for re-inventing. If Pfizer knows that Merck can and will spend $100M to duplicate Pfizer's $100M invention, Pfizer will offer to license it to Merck for $50M and both companies win.

The root cause

Posted Aug 3, 2012 21:50 UTC (Fri) by steffen780 (guest, #68142) [Link]

Sorry but now you seem to mixing things up. Patents without assuming that independent discovery was a copy are pointless. We have copyright for that.

The root cause

Posted Aug 5, 2012 3:06 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

Patents without assuming that independent discovery was a copy are pointless. We have copyright for that.

How do you figure? The point of patents is to protect inventions, which is something copyright can't do, because it protects only expressions. How do you suppose copyright would stop Merck from manufacturing and selling a drug that Pfizer invented? Assume that Pfizer could prove Merck learned how from Pfizer's paper on the subject, so that independent discovery is not an issue.