While the SCO saga is absorbing our attention in the short term, many
are concerned about software patents and they worry that the real
test for GNU/Linux will be in the future, from patent lawsuits. There
have been numerous patents granted that to programmers seem to have
been wrongly issued. The Amazon One Click patent springs to mind. Now
will be charging for use of the FAT filesystem, and that too makes some worry
The Public Patent Foundation
has recently been established for the purpose, as its web site puts it,
of protecting "civil liberties and free markets from wrongly issued
patents and unsound patent policy by providing those persons and
businesses otherwise economically, politically, and socially deprived
of access to the system governing patents with representation, advocacy
Dan Ravicher is the patent attorney -- and programmer, incidentally --
who started PubPat, and he is its Executive Director. He was kind
enough to answer some questions about patents and the work his
organization is doing to educate the public and counter patent abuses.
He says he is looking into the Microsoft FAT patents situation and has
about a hundred pieces of prior art which were not reviewed by the examiner
which they are currently reviewing. Dan was kind enough to answer the
What made you decide to start your foundation and can you tell us
what it does?
The patent system is being abused by private actors to the
the mostly unaware public. Our health, our freedom, and our economic
prosperity are all under assault from bogus rights meted out to the few
with the power and expertise to game a system originally established
hundreds of years ago to promote progress within society as a whole.
government, through primarily a captured patent office utterly failing
achieve its mission and skewed policies implement into patent law by
Congress and the courts, is not just failing to defend the public
from abuse of the patent system, but is complicit in and supportive of
In information technology industries, abuse of the patent system means
illicit restraint of civil liberties and unjustified disproportionate
burdening of small businesses. In life science industries, abuse of the
patent system has even more devastating results, including the
exacerbation of pain and suffering by those who cannot afford medical
technologies covered by undeserved patents. This situation is abhorrent
and the Public Patent Foundation is beginning a campaign against such
PubPat's four core activities are (1) challenging patents that
the public's health, freedom, or other interests, (2) helping small
businesses defend themselves from patents being asserted against them,
establishing patent commons within markets crippled by patent thickets,
and (4) educating the public regarding these issues and advocating for
reform of the patent system.
If you plan on contesting any patents, can you tell us what
you have in mind currently? And what would the process involve, from
At the moment we have under consideration several patents,
Microsoft's FAT patents, the Optima patent on CD burning, and a patent
co-transformation and protein production. Upon completing our review,
there are many ways to neutralize the harmful effects of a patent,
including asking the Patent Office to revoke it and publicizing ways to
avoid infringing it.
To expand on one of the examples above, the Microsoft FAT patents are part
of Microsoft's first attempt at building a licensing line of business akin
to the one rolled out by IBM several decades ago. This causes concern for
us because Microsoft is an admitted monopolist with a proven track record
of driving competition from various markets through any mechanism available
to it. They may now be focussing on patents as yet another avenue to
foreclose competition, including specifically that from free software.
Beyond these atmospheric concerns, our analysis of the FAT patents has
produced a substantial amount of prior art that was not before the patent
office when it issued those patents to Microsoft. For a company with a
nefarious past to be seeking revenue for patents that very likely did not
deserve to be issued, is a malign scenario indeed. PubPat intends to
ensure that the public's interest in being protected from such bahavior is
Should there be software patents at all?
Many feel passionately about this issue. As a empiricist, I
speak in categorical broad-brush terms unless presented with sound data
analysis to support a particular conclusion. With respect to software
patents, everyone can agree that none which fail to meet the
novelty and unobviousness should be granted or maintained. Beyond
have grave concerns about the lengthy term of patents being applied to
technologies with short life cycles, especially those with life cycles
shorter than the term of the patent. Such patented technologies never
provide a public benefit, because by time the patent expires, the
is no longer useful.
One thing the Public Patent Foundation is doing is compiling the data
performing the analysis I mentioned above, so that all reasonable
can be presented with evidence supporting or condemning the policy
made by the courts that "anything under the sun made by man" is patent
What is a "wrongly issued patent"? Should patents only be
issued for a demonstrable, produced invention?
A patent can be "wrongly issued" for several reasons, including
patent office was not aware of significant prior art during the
process or that the patent office simply made the wrong conclusion
whether or not the patented technology was new and unobvious. I'm
what you mean by "demonstrable, produced invention", but the current
standards of novelty, non-obviousness, and reduction to practice are
standards. The problem arises from either a lack of evidence on which
base a judgment as to whether something is new, unobvious, and reduced
practice, or a lack of competency in making those judgments.
Should the inventor state/swear that they intend to use the
Many countries have patent laws that force a patentee to exploit
invention, else it becomes subject to a compulsory license at a minimum
royalty rate. Such a rule is better than what we have in the United
which does not require exploitation of patented technology. At the same
time, however, such a shift may penalize small businesses who may not
access to the resources necessary to exploit a certain technology. Such
small player patentees would have their leverage in negotiating a
with a larger competitor undercut by the statutory compulsory
It seems like many patents these days involve
"good ideas" which are never implemented by the patent
holder. Should "inventors" of software and/or business
methods be required to provide evidence that they've made the
system work before a patent is granted?
Patent law requires a patent applicant to reduce the patented
to practice prior to applying for the patent; else any patent resulting
from the application is invalid. To reduce a technology to practice,
patent applicant must either actually create the technology or describe
in such detail that one of ordinary skill in the art with the requisite
resources could create the technology without undue experimentation.
instance, if you invent a time machine, but can't afford to make it, you
can still get a patent so long as you tell others how to make it with
sufficient detail such that they can successfully make the time machine
least 70-75% of the time. If, however, your instructions are
for one of ordinary skill in the art with requisite resources to create
the patented technology at least about 2/3rds of the time, then your
patent is invalid for what is called "lack of enablement."
What about patents granted for obvious methods and technology?
Should a patent be more than a unique design of a
commonplace item such as a document or file?
The law requires a patented technology to be both new and
crux of your question resides in defining the term "unique." If
is "unique" enough that ones of ordinary skill in the relevant art
it as being a new and unobvious technology, then current patent policy
suggest rewarding the publication of that technology with a patent.
Otherwise, the developer will keep the technology secret and other
of society will not be able to learn from and improve upon it.
What is the international impact of American patent law on world
First, half of the world's economy takes place in the U.S.. That
means that U.S. patent law directly regulates half of all the world's
business. Second, through international treaties, many of the policies
U.S. patent law have been adopted and implemented by other countries.
results in regulation of business wholly outside the U.S. closely
the regulation of business within the U.S..
Computers are extensions of the human brain; computer storage
is an extension of human reading and writing; electronic
communication is an extension of the human voice. How do you
feel about patents which use computers to do things that
humans have been doing for millennia?
A patent cannot cover pure functionality; else it is invalid for
indefiniteness. Rather, a patent can only cover specific structure
accomplish a particular function. As such, it is only the structure
patented, not the resulting function. Many people misunderstand this
important facet of patent law because sometimes, especially for the most
publicized patents, the structure covered by the patent is the only
structure for accomplishing the particular function. This leads people
assume that the function itself is patented, which is not the case.
Designing around patents is highly encouraged in patent law, and someone
else is free to learn from the patent and come up with different
for accomplishing the same, or a substitutable, function.
If a patented technology accomplishes a very old function, but with
structure that is new and unobvious, then that satisfies the
for patentability. Further, one may need to recognize that functions
not necessarily the same simply because their result is the same. For
instance, few humans who can do in a day (week, year) the complex
calculations machines do today in mere nanoseconds. The function, in
case, is not getting the answer; it is getting the answer in virtual
time, which is something that humans have never done.
Do you feel that public discussion should be allowed before a
patent is granted?
Public comment on patent applications prior to issue is an idea
merit. Such is the law in many foreign countries, and recently the
office abolished its prohibition on receiving third party correspondence
regarding patent applications. However, if the process of pre-issuance
public discussion includes a mechanism for third parties to delay the
application from issuing, that mechanism might become unjustifiably
and manipulated, particularly by larger corporations who can afford to
"hold-up" a smaller companies "crown jewel patent."
to post comments)