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Surviving in a world full of software patents (NewsForge)
NewsForge presents an
editorial on the merits of obtaining software patents. "If you
are an open source developer you are probably less motivated by profit
(though certainly you want to be fed), and more motivated by the hope of
making the world a better place through cooperation. This is a noble
position, but don't be played for a fool. The lack of a patent on your work
gives free rein to people with PROFIT on their minds who want to steal your
inventions from you and use them for their own gain instead of the gain of
all. The next thing you know, you will be facing patents based on something
that incorporates ideas that you pioneered."
(Log in to post comments)
Prior Art Posted Jul 20, 2004 18:41 UTC (Tue) by AnswerGuy (subscriber, #1256) [Link] This editor seems to be advocating the registration of defensive patents by free software developers on the notion that someone could register patentsderived from work that was developed and published for free (under a free license). However, the counter argument is that any patent that derives *obviously* from a published work would be invalid. The work from which it was obviously derived would be "prior art." So a patent system that's operating even close to the bounds in which it was frame (novel and non-obvious) would not need such a defensive hack. Ergo the problem with the patent system is systemic and needs to be fixed there. Registering defensive patents will not address the underlying issue and will probably confer no real benefit to free software users at all. JimD
Prior Art Posted Jul 20, 2004 18:55 UTC (Tue) by Ross (subscriber, #4065) [Link] What about the "first to file" system which is supposedly used inthe EU and has been offered as a way to make the US patent process cheaper and faster? My understanding there was that a patent could be filed by someone other than the inventor.
Prior Art Posted Jul 20, 2004 19:19 UTC (Tue) by kakareka (subscriber, #5204) [Link] My understanding (in the US) is that after an idea is published, the inventor has 1 year to submit a patent application. However, anyone with a "proprietary interest" can apply for a patent in that time if the inventor is unable or unwilling. The example usually given is a company filing for a patent when an employee refuses. I've been told anyone can actually file, which seems ridiculous. Is there anyone with a better understanding of patent law who can comment? If anyone can file, it would seem to justify defensive patents as the only way to prevent others from patenting your work.IANAL, and haven't done thorough research on this, so if someone more informed can comment, I'd appreciate it. This is an issue that has come up in my work. John
Prior Art Posted Jul 20, 2004 19:23 UTC (Tue) by ChrisSpencer (guest, #23200) [Link] I am saying that prior art isn't enough.First of all it isn't enough because it's already well established that the USPTO doesn't have time to do a good prior art search and that isn't likely to change anytime soon. Secondly it is the equivelant of a BSD license. It does nothing to protect freedoms that many GPL using developers are wanting to protect. The editorial is a call to discussion more than anything. I think we need an consortium similiar to OSDL, EFF, GNU to provide a patent license that can be used to protect our freedoms and further to facilitate a method under which independant developers can get assistance and funds to file for a patent with the stipulation that rights to enforce the patent are conveyed to the consortium and that future profits that might be incurred from users wishing to utilize the patent for non-free purposes are shared between the consortium and the developers.
Really that is a big part of why I am defending the position so actively.
Prior Art Posted Jul 20, 2004 20:36 UTC (Tue) by mmarsh (subscriber, #17029) [Link] My impression was that the prior art search isn't done by the USPTO, it's done by the filer and his or her attorney. The idea is then supposed to be that the filer believes this to be novel work. The prior art search is, I think, the most time- and money-consuming part of the patent application. I assume there is some part of the application that descibes the patent search, though I've never seen an actual application and hence can't be certain.Regarding license equivalents, I'd say that published but unpatented algorithms/protocols/etc are more like public domain than BSD. If I publish a protocol without patenting it, anyone can implement it without referencing me. If I release the code for my implementation under a BSD license and someone uses that as the basis for another implementation, my copyright has to be mentioned. A BSD-style patent license would specify that the algorithm or protocol has to be referenced by the implementer.
Prior Art Posted Jul 20, 2004 20:39 UTC (Tue) by AnswerGuy (subscriber, #1256) [Link] I should clarify one thing: My main point is that our patent system was supposed to have certain constraints. In particular that the alleged invention be both NOVEL and NON-OBVIOUS.If our patent process wasn't systemically dysfunctional than publication of prior art would be sufficient to refute novelty (DUH!). Also "obviousness" was intended to be measured against others who were conversant with and practiced in the field to which the patent application pertains. Thus something like XORing bits for masking images (icons, mouse pointers, etc) against a background isn't "obvious" to a housewife or an accountant (or even a doctor or lawyer) but is blatantly obvious to anyone in the field of computer programming, especially in the field of graphics. I vividly remember a cypherpunks meeting where someone intoned the date and asked: "What forms of arithmetic am I allowed to do today?" Our patent process is systemically broken. That's all there is to it. Large monied interests are trying to turn our country into an oligarchy in which one must petition the "royalty" for permission to engage in any non-trivial business venture. That's the thrust of rampant "IP" (intellectual property) application today. Every word and image is trademarked (and practically any image can be viewed as a "derivative" of some trademark) every sequence of words, musical notes, or paint daubs is copyrighted, and every non-trivial "mechanism" (including most of the arithmetic we'd program our computers to do) is patented. This all intellectual endeavor is encumbered --- practically if not legally since most of us cannot defend ourselves from a serious litigant. JimD
Prior Art Posted Jul 21, 2004 8:58 UTC (Wed) by mathieu_lacage (subscriber, #3967) [Link] It does not make much sense to attack the patent office like that without understanding why it became like this. The crux of the matter is that all western companies use IP protection (Patents, copyright, whatever) to derive revenue from intellectual processes because all their other sources of revenue have dried. Today, most of the real production of real material goods is carried on in other countries and there is little reason for this trend to stop in the near future.I believe a much more productive fight would be to try to understand how these ongoing economic changes will evolve and how to adapt to them (from the point of view of society): the patent office and the associated IP laws will naturally adapt to the surrounding economic environment if it changes but I do not believe they will change under the pressure of individuals or small to medium-sized groups. I must say I am a bit worried about these relatively narrow-minded attempts at fighting against the pattent office. Narrow-minded is used here to express the fact that you are concerned only about the consequences of these laws/the pattent office behavior on a very narrow segment of the economic and social life (here, Free Software).
Prior Art Posted Jul 21, 2004 15:28 UTC (Wed) by ChrisSpencer (guest, #23200) [Link] Bah. I think it has an application accross the whole strata. I just think that the FOSS community is best organized to address it.Certainly biotech and the pharmaceutical industries could really benifit from a public patent sharing system. Government and privately funded research in all fields ought to be protected to ensure continued free access to the inventions. -Chris
Surviving in a world full of software patents (NewsForge) Posted Jul 21, 2004 12:49 UTC (Wed) by dps (subscriber, #5725) [Link] IANAL but I do know something about patents and copyright. Anything that is published (which is usually widely defined) is obvious and therefore not patentable. IBM et al have "disclosure journals", which exist to publish things that are not worth patenting so nobody else can patent them.Some of the things IBM disclosed *should*, with the benefit of hindsight, have been patented instead. One of the most prominent examples is time sharing which a was a very large part of IBM's, and many other people's, business a few years later. The US, but almost nowhere else, allows you to exlcude your own material from the prior art search but not any comments someone may have made about it (e.g. I can exclude my journal article, but not a description of it's content in someone else's article). Patents are supposed to make the business of inventing profitable, and must be non-obvous to an expert in the field----98% of software patents fail this test IMHO. I could argue that RCU, the RT-Linux patent and Transmeta's hardware assisted complation of x86 code really should be patentable (but thick lines and double clicks definitely should not be patentable). Copyright can be applied to almost anything, and only protects my implementation/expression of an idea. If someone does something indentical on pure wood smoke, then I have no case. (Some bits of germany are copyrighted, to stop various people misrepresenting photographs of them as many other countries). If you want to argue against software patents, attack them on the failure to apply the non-obviousness test and fact they do not promote useful arts (the stated purpose of patents, copyright, etc).
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