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
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.
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
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
It was not implemented, but just the description of the idea was enough for
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
It takes three or four years after an application is filed before a patent
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
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
[ The author would like to thank KDE e.V. for travel assistance to Tallinn
for Akademy. ]
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