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Open Defensive Patents?
"Dear /.,
There has been quite a tide of discussion lately regarding the inadequacy of the U.S. patent system when it is faced with technical intellectual property issues. Much of the controversy surrounds the ability of large corporations to patent what are apparently basic or obvious implementations of Internet technology (The Amazon one-click shopping patent, the AskJeeves use-a-question-to-search patent, etc.). The main gripe seems to be that much of the underlying technology which was produced in a communal, open, free-exchange computing culture is being seized, caged, and milked in patent form by mere opportunists looking for a way to insure the wealth of their family line for the next several centuries. Of course, this wealth is extracted from the hard work of the people who developed these technologies, whom in large share come from the general open-source community.
The corporate types and their lawyers will object thus: "Well, if *we* don't patent this stuff, *someone* will, so why should we be the ones to get screwed?" This is the basic argument for the defensive patenting that is going on all over the industry.
How about this idea: We can't fight the patent system, and it's not going to simply disappear, so why not try to make use of it? How, you ask?
Open Defensive Patents.
The geist of this is that obvious technologies are patented, but these patents are granted to a class of people, or to a community, or (what the heck) to everyone, thus rendering their legal power useless. You can think of them as Public Domain patents if you like. Well, I Am Not A Lawyer, much less an expert on patents, but I did think this was an angle to the issue that hasn't been addressed, so I though I'd toss it into the collective /. mind for comments or ideas. It does make a good prima facie case, but there are certainly going to be subtleties to patent law or licensing that I cannot see.
-Rob "
Well, I've always liked the idea of a "shared pool" of patents that does for the patent system what the GPL does for copyright. In this case, I think an actual organisation would be appropriate - the Open Patent Organisation, or the Prior Art Organisation. Another option is to do as in the bugroff license, which establishes a World-Wide Bugroff Association of which everyone who acquires the software is a member.
These are all interesting ideas... but I can't really do much, not being in the US and all.
To the editors: your English is as bad as your Perl. Please go back to grade school.
The thing to do isn't to get a patent, but to publish the technology instead, so that it can't be patented at all.
A central repository of prior art would be useful, as somewhere to refer to for help in settling bogus patent claims. www.prior-art.org and www.prior-art.com both exist, but don't seem to contain much at the moment, so they may or may not be relevant.
This sounds like a good suggestion but I think it's unnecessary.
When you apply for a patent, someone can make that claim invalid by proving there has been prior art. If the tech you're trying to patent has been used before, you won't get your patent.
So, rather than defensively patent everything, we should just make sure that everytime a mindless patent application comes along, we are able to show it's prior use to invalidate the claim.
I strongly believe that trying to be clever is detrimental to your health. -- Linus Torvalds
I would suggest the opposite approach. Rather than trying to cover every possible loophole at $10K a pop, it would be in our best interests to establish a central "Prior Art" repository, with a searchable database indexed on likely terms. That way, we are more likely to find Patent Office clerks turning down patents based on common industry practices, rather than the current situation, where underpaid and overworked white collar staff seem to be approving anything they can't understand, and relying on expensive lawsuits to strike down anything that is out of line - and who has the money to take on these sorts of cases?
--
-=DaveHowe=-
The idea of creating an 'open patent' that is then GPLed is a good one, but I fear patent applications might be too expensive. A free alternative would be a forum for 'anti-patents' where the Open Source community outlines any invention they don't want patented; anyone can then use this source to claim prior art when companies later attempt to patent the idea.
I thought that making a technique open source gives it unoriginality and/or obviousness. Thus not patentable.
So the thing to do (as has been mentioned before under this subject) is to have a public repository of groovy and original-looking code in an easily understood and multiply-implemented form - in the pedantic style of patents.
So USPTO just drops by whenever someone tries to patent the Unix runlevel daemon idea - and learns to understand us and our code and culture in the process. So this site must not be anti-USPTO, is the point I'm making, there.
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Dere's a storm a-comin'...
Keeping in mind that I know almost nothing about US law, much less patent law, isn't there something about previous works in the patent process? If I understand it correctly, couldn't we just implement a particular idea, and then when someone tries to patent, we have previous works to show its already been done?
This would alleviate the legal and financial problems that we face trying to get patents granted, while still protecting obvious ideas.
Am I way off track here?
$10,000 divided by number of people in open source community = $0.001 or something :^)
Of course, not everyone would contribute, but I would have though that most people would cough up a small donation for stopping 'major' stupid patents.
It seems to me that a lot of this problem could be resolved if these kinds of "software technology" patents were submitted for peer review, in much the same way that scientific & technical research papers are scrutinized by experts prior to publication. I don't know if the U.S. Patent office simply doesn't have the expertise to properly research the prior art in these cases, so perhaps certain experts (e.g., college professors, other recognized experts) could be sent copies of the patent applications for their review and critique.
1. It takes time and money to actually go through the process of doing patents; if we're going to have a Free Patent Foundation (so to speak), someone's going to have to be doing all the work for this, and since patent licensing fees would presumably not work as a revenue source... :)
2. In order to really have this be effective, we would need to patent a *LOT* of things. Even if we patented everything we could think of, there would still undoubtedly be things we'd miss, that some opportunist (as he put it) would take advantage of; but this would definitely reduce the number of stupid patents owned by greedy companies. However, multiply #2 x #1 and we've got lots and lots of patents, taking up lots and lots of time and money.
3. In theory, since the patents would all be "open", meaning they are totally unrestricted in their use by anyone, then we might still have boneheads like Amazon.com patenting *the same thing* and ignoring our patent entirely. I would not put it past patent lawyers to figure out ways to acquire a patent on something that has already been patended, except for making minor changes that would distinguish it to the USPO. (As we've already seen, the USPO will apparently grant a patent to anyone for anything.) So later, when a legal situation comes up, Big Companies like Amazon will win in court due to superior mu$cle, even though their patent isn't really legitimate (not to mention that their case will probably be frivolous to begin with).
IANAL, so I'd appreciate anyone's clarifications on this. I'm just basing this on what little I know of patent law here in the states.
"Destroy science and religion. Science would re-emerge exactly the same; but not religion." - Penn Jillette, paraphrased
One of the problems seems to be trying to figure out what someone else is going to try to patent. I'd have never thought about trying to patent either of the two examples mentioned. They just seem to obvious. Even if you had the money to submit the patents, you can't patent everything.
Our patent laws are in desperate need of revision when it comes to software, etc.
This wouldn't solve the problem of tryint to patent everything and require some changes in the law, but one way to implement something like this would be a no-profit, no-cost registration. You would fill out a patent form and submit it to a pd database. No research would be done nor would you be able to charge others for the patent. The form would just sit there until someone else submitted a "normal" patent application. Part of that process would be researching the pd database for other registrations. If there's already a pd patent on it, your personal patent would get denied.
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
The political solutions:
1. Make patent applications get posted on the Web so that they can be pre-empted by prior art, rather than challenged after approval (doesn't
Europe do this?).
2. Shrink patent lifetimes for software patents (if not ban software patents altogether).
Internet patents should live on Internet time.
(How's that for a sound bite?)
But, aren't these solutions going to be defeated by entrenched corporate interests?
For every corporation that benefits from the current dain-bramaged implementation of US patent law, there are several that suffer. I really don't think this ridiculous situation will survive the next few Congressional sessions.
The idea of open patents is a good one, although as stated previously, just publishing the method should be sufficient to prevent a patent being granted. One concern that I would have with such a system is the potential for companies to point to the *lack* of some open-patent in such a system as evidence that no prior art for such a method exists.
flossie
Write now. Defend liberty
My line manager explained the way patent infringement works.
Both companies pile up all their patents, and whoever has the heaviest pile wins.
Most companies actually use their patents defensively, or arrange a swapping deal. If the patent is actually useful, then they are usually tolerant of people experimenting with it as long as they don't try to use it directly against them, because the patent will still apply to possible derived technologies, which will make the patent that its derived from more valuable.
The difficulty comes from the companies with a single patent that their whole business is based on. Then the patent is more valuable to them to keep a stranglehold on the market, by eliminating direct competition.
If we created a patent and allowed everyone to use it, then these companies would still be able to use this ill-mannered behaviour simply because we can't patent everything. I think what we really need is some patents with a licence that allows free use for non-profit purposes, and free use to all organisations who own no patents. The patent could be donated to a non-profit organisation, who would fund the patent applications by charging reasonable licencing fees to large companies. Most companies who can afford patents can afford a reasonable licensing fee. The licence fee would be used only to cover costs, and fund the occasional counter suit if a company tries to prevent an open source rival by using a trivial patent.
Can anyone point in the direction of rules to international vs. US patent rules? Could I go to the patent number in Norway (where I live) and patent this brilliant new technology that makes people able to buy stuff on the net with a single moose-click. (in Norway, mooses (or is that miise?;) are abundant :)
Also, we must not forget that there are always more than one way to do something. If someone patents a protocol to transfer stuff from a computer to another, well... we'll make a program that does the Exact Same Thing(tm) in a slightly different way AND make it opensource as well, rendering the proprietary one practically useless. (well, not useless, but who would want to pay to use a proprietary thing when they could have something truly free?)
Finally, speaking of this patent-mess, I was wondering if someone could TAKE a technology that was already opensource and close it with a patent? Example: I take the way Linux handles memory and patent it, forcing Mr.Torvalds to come up with something new??
Of course this sounds too easy so I am either making the wrong assumptions or I have a flaw in my logic.
At the Public Patent Portfoloio Consortium (P3C) there are links to a Technocrat article about this, and to OpenPatents.org.
Disclaimer: I'm not impartial. I created P3C and wrote the Technocrat article. OpenPatents.org belongs to someone else.
perl -e 'srand(-2091643526); print chr rand 90 for (0..4)'
Establishing a pool of patents for cross licensing purposes is much more useful than just giving away licenses to anyone. It could also be used to cover costs, and at the same time encourage open source, by requiring normal licensing fees for people who wish to license the patents for closed source software.
adequately research prior art like it used to. Write your elected officials about it.
Ive been saying this for months! An open patent license that acts something like the GPL.
What about a license like this (derived from the GPL or something):
"You may use this free patent but not unless you submit any other patents you use with this one in a piece of software to the Free Patent Foundation"
or something to that effect. maybe it could also impose a small charge on big companies wishing to use our "open" patent to cover the administration
The cool thing about this is it helps reverse all past software patents granted! If it catches on that is. companies with stupid patents would have to relinquish control of any software patents they have if they want to use ours.
Oracle most wise, please tell me how quickly this will be marked offtopic by clueless moderator?
Obviously, this would be insanely expensive.
Furthermore, if the stated intent of involved parties is to "patent all the obvious things that the patent office shouldn't let slip through" then the patent office may well simply ignore any patent applications from them (and I can't say I'd blame them).
If the Open Source community could manage to gather these funds, a much better way to spend them would be to hire patent lawyers to go around and knock down all the silliest software patents.
Other good ways to spend it would be government lobbying and PR campaigns: to eliminate software patents, shorten patent durations, improve the patent office (I don't care how swamped they claim to be, with $10k filing charge, they ought to be able to hire someone bright enough to point out that XORing a pointer onto a screen is trivially obvious; there is a monstrous bureaucracy eating those payments and not doing its job), etc.
Of course, gathering that kind of money is a non-trivial implementation problem.
Get to know the system before you start criticizing it. Read the faq (at least once), kay?
For the umpteenth time, those who have been posting for a long time & have lots of karma get the option of posting at the 2 level instead of at 1. His posting is also not redundant because it does in fact introduce some new ideas and interpretations of what has already been said (even though he probably hadn't even read the earlier posts since he's #13).
The trouble with prior art is we only knock out patents one at a time---we have to find prior art for each one, and then we still have to deal with the next, and the next, and....
A patent portfolio, on the other hand, allows us to pull the teeth of many patents at once, because our portfolio allows us to threaten large companies with stupid patents, just as they're doing to us. We offer to cross-license, they allow free software use of their patents, and we've neutralized their whole portfolio in one go.
At least one problem, though, is Inter-Mega-Ware may well be willing to spend the cash to invalidate our patents, while we don't have the wherewithal to do the same to theirs. Still, it's an idea that needs following up.
I refuse to believe corporations are people until Texas executes one. -- desert rain on http://www.dailykos.com/user/
Hmmm. You could certainly try. In fact ISTR that US patent law allows you a year after publication to patent the invention, so this is still open.
However it would not invalidate the current trade secret law suit, and I'm pretty certain that the current injunction would apply to publication by patenting. Once you have won the law-suit THEN you can go for the patent, assuming you haven't missed that 1 year deadline.
OTOH you might be able to use this as a bargaining counter. Point out to the MPAA that if they lose the suit then they will have to license CSS off you, rather than the other way around. Then offer a deal where they drop the lawsuit and injunctions in return for a free license or something.
Of course, IANAL, and if there is one thing a scheme like this needs, its a competent lawyer to look at it. There may well be something in trade secret law that blocks the whole idea.
Paul.
You are lost in a twisty maze of little standards, all different.
If all you are going to do is patent something to establish prior art, you are wasting your time and money. Other fields have long established journals for just this purpose. Some of these journals even allow anonymous publication so that if a company decides to publish to get something in the prior art they don't reveal to their competitors who is developing the technology.
There is no need to re-invent the wheel. Other technology areas have been dealing with patent law for up to 300 years, and have well established methods for handling certain problems.
FWIW, http://www.priorart.com/ exists, though a commercial patent record searching company.
There's also http://www.priorart.org/ , which looks like it's going through testing but looks more promising.
There's also the Software Patent Institute at http://www.spi.org/ .
Terrorists can attack freedom, but only Congress can destroy it.
As I understand the US law, you are allowed to copy whatever you want from patents for PERSONAL USE.
Under this clause, many things become a non-violation.
No where am I seeing a discussion of PROCESS patents. Like one-click shopping. Or scratch and win (as a web application)? Exactly HOW are you going to create a 'defense pool' of the classification of process patents?
And the final flaw in the idea of a patent pool:
So you have the $10,000 to file the patent. Now what about the money to defend the patent? Both infringement and attempts to have the patent thrown out.
As a vendor who makes ASIC devices said "We infringe all the time. And we only pay if asked." Does this sound like the attitude of a certain company in Redmond? Who has the time and money to prove an infringement in a closed-source product?
An example: Search slashdot for code warrior by metroworks. (the slashdot crew would have to fidn it...static pages can't be searched by us mortals) There was a claim by an AC that while they worked at metroworks, they used gcc GPLed code in the product. Now, where is the outrage for the alledged violation by Metroworks? Corel has gotten its fair share of tounge lashings....so I know the "community" is able to tounge-lash. Because Code warrior is closed-source...it will take work to figure out if the allegation is true. And I don't see anyone who is taking the time to examine the serious claim of infringement in the Metroworks case. (If you can't defend what you have already...why are you seeking more to defend?)
(and why do people want to assign patents to the FSF? So they can make money off the patent when they lease it out to companies?)
If it was said on slashdot, it MUST be true!
Many countries have signed a treaty which gives national status to inventors from other countries who wish to apply for patents. Thus, if you apply for one in your country, it is probably equivalent to applying in the U.S. (provided that you actually do apply within a year).
Furthermore, the Internet is an international beast. If someone infringes a patent from *any* country over the Internet, an infringement award can probably be had...
So, just because the U.S. has the most aggressive patent system doesn't mean that you can do much.
By the way, simply publishing an invention has the same effect as patenting it. The only thing is that a patent is presumed to be valid, so it is a big advantage to have one.
For those of us who can not pay 10K for a GPL patent: prior-art.com
However this does not remove the issue all together. So I publish something at prior-art, how do you know that after a while I wouldn't come back and wouldn't use prior-art to get my idea patented in case if it catches on and I decide that I can make some dough?
prior-art should get all rights to ideas posted on their site and they should not be able to patent any of those ideas under anything else but the GPL.
You can't handle the truth.
This however isn't a perfect world, and as we have seen in the past, there are ways of getting around / avoiding patents which already exist. As has been commented before, it is easy enough for companies to get patents on technological ideas when patents for the same things already exist.
Where everyone's efforts should be concentrated (IMHO) is following up the bogus cliams made and accepted, and pushing for a change in the patent rules to stop it from being done.
As a possible thought, how about setting up an organisation to check up on these things (as has been discussed), but in order to provide finance for inevitable law suits to contest patents when needed, the organisation pushs the large (and not so large) corporations for support. Get enough on side and the cost to each is minimal, yet the potential positive publisity is very large. Also, if company x patents something illegally which it's competitors would like to use, it would be in their own best interest to collaborate with the organisation and each other to overturn the patent.
With centralisation to manage how it is all organised, and pulling the right levers in many companies, it could become a force to recone with. Companies might not be worried by the threat of government intervention on these matters, but how would they feel if they knew that if they tried to break the rules, they would find themselves alone, up against the whole (or the majority) of the computer industry.
Create a well known web site and just allow software algorithms/techniques to be posted on it. Give it a search engine and maybe let editors do some tidy up work and spam elimination.
The object is NOT to assign priority to the posters but to make public both the algorithm and the fact it's already publically known.
After a while such a site would be useful in it's own right as a knowledge bank.
Mutual defense is orthogonal to the idea of free software. 3dfx, Intel, and Microsoft--who all depend on proprietary software--could participate if they ceased their patent aggression.
Instead of paying $10K, we should set up a pool of "provisional" patent applications. For under $100, a provisional patent provides no offensive power, but clearly puts each idea out in the PTO database of "prior art". After a year, the provisional applications expire, but their existence should work as a block to unscrupulous patentees.
Similarly, there is a statutory invention index that are "defensive" patents which go through the PTO obviousness review, but cannot be used to sue. Either of these ideas is practical. It would be simple to set up a web based group to handle this. Any takers?
My line manager explained the way patent infringement works.
Both companies pile up all their patents, and whoever has the heaviest pile wins.
Pithy and amusing, but clearly false as a general statement. The truth is far more interesting
Consider Microsoft (then owner of only a few hundred patents), and STAC (then owner of 1). Verdict: Microsoft liable for patent infringement to the tune of $110M.
Present tense, we are seeing Priceline.com (few dozen patents) suing Microsoft (thousands of patents).
There is some truth in the proposed statement in certain circumstances (cross licensing between industry giants), but aside from being funny-sounding, it does not really inform the question.
The better way of saying it is to note that there are many uses for patents, including offensive (revenue-generating, competition-eliminating) uses of patents and defensive (cross-licensing; counterclaim protection) uses of a patent portfolio. Much depends upon whether a company is going for a large number of relatively weak, narrow, "covering" patents, in lieu of a carefully crafted, expensive patent of very broad scope.
The difficulty comes from the companies with a single patent that their whole business is based on. Then the patent is more valuable to them to keep a stranglehold on the market, by eliminating direct competition.
All patents suffer this problem, but in practice, markets being what they are, single-technology companies tend to generate more revenues by licensing fees than by extorting monopoly rakes. The vast majority of patents aren't practiced at all. Of those that are practiced and commercially meaningful, the vast majority are exploited by licensure.
There are certainly notorious examples of companies that have taken "seminal" patents out of circulation throughout its term (e.g., Polaroid), but to do so, there needs to be the rare combination of a stranglehold seminal patent, and no meaningful alternative in the marketplace.
Patents are extremely territorial in scope, and law varies nation to nation. A U.S. patent excludes people from making in, using in, selling from, importing to or offering for sale from the United States, and with exceptions does not apply to purely extraterritorial transactions, for which local law applies. You need a patent in each country in which you would like to enforce a patent.
Various treaties permit you to file foreign national applications within a limited time period after a domestic application, or to extent that period de facto by filing a so-called PCT application.
But the invention must be patentable according to each coutnry's national law to obtain a patent there. Virtually every country considers foreign patents and publications as prior art (although some, but not all, consider foreign public uses or sales).
It is highly unlikely that you could obtain a later patent on an antedating work in a foreign jurisdiction, and even if you could, the offering of or importing into the domestic nation where the work is patented by another would be a patent infringement by *you*. (Highly oversimplified analysis of an highly oversimplified hypothetical -- on subtly different facts the end result can be quite different, just trying to give you a taste of the considerations).
In the 90's workers were abused to work longer hours than were healthy. Products were useless if not some times dangerous yet were sold anyways. Mom and Pop operations were quickly swallowed up by greedy conglomerates, and those not swallowed were forced out of business.
But I am not talking about the 1990s... I'm talking about the 1890s. In that time the industrial revolution had started full swing in the US and most of the money of the time was held by only a few people (Rockafeller, Vanderbilt, etc). And the reason that happened was because there were not laws on the books to protect the people from them.
Now the arena has changed but we have the same situation. Defensive Patenting may be the answer but private organisations have historicly not been able to compete with large corporations. The corporation has time and money on its side, and time and money will tend to win the day in the legal arena. What eventually broke the strangle hold of the huge corporations of the 1890s was protests and the formation of labor unions to fight for worker rights. The government also had a hand in this when they founded the FTC.
Alternativly though instead of defesively patenting ideas; maybe creating an organization of open source programers who could then lobby the Federal Government to change the laws may be more effective. We already have forums here to get our ideas heard by one another, why not get some organization?
Why not point out to the USPTO that they infringe patents themselves? The USPTO has gif images on it's website - without licencing patent no 4558302 this is illegal by their own rules. Given the recent plethora of 'internet selling' patents I would guess that the USPTO probably infringes dozens of them. With a little effort each from several people we could categorise them, making it clear to that the USPTO's own rules are outragous.
As an aside, I often find that people not familiar with technology don't understand how flawed the patent system is. I find the following analogy helps explain things to them. Imagine the bicycle had been invented in recent times. The basic two-wheeled device would have been the first patent. Someone else would have patented a steerable front wheel but wouldn't have been able to make a steerable-front-wheel bicycle without licencing the first patent. Further patents for pedals, chain-drive, sprung-seats, brakes, bells, gears, lights, rubber tyres, pnumatic tyres, alloy frames, curved forks, and a hundred other things by a hundren other 'inventors' would ensure that no-one could make a usefule bicycle without licencing 'inventions' from a hundred different companies (each of which would presumably want the basic 5% sales royalty!!). This is the situation we have now.
Roddy McLachlan
As I understand the US law, you are allowed to copy whatever you want from patents for PERSONAL USE.
You are free to make copies of the patent instrument, of course (which is a copyrightless government publication). On the other hand, if you "make" or "use" the invention, you are infringing, regardless of use, and even if you didn't make profits, would be subject to injunction a reasonable royalty and court costs, plus possibly treble damages and attorney fees.
No where am I seeing a discussion of PROCESS patents. Like one-click shopping. Or scratch and win (as a web application)? Exactly HOW are you going to create a 'defense pool' of the classification of process patents?
By inventing new, useful and unobvious processes and filing the applications?
I agree that much thought needs to go into the licensing approach for a patent pool, and I would not use FSF for that purpose either. But the fact that there are complex questions doesn't mean this isn't a capital idea once fully developed.
There is a definite possibility of doing something like this-- in fact, there's even a license agreement that we could pattern the entire system after: IBM's patent for the Data Encryption Standard.
When the NBS (now NIST) decided to adopt IBM's algorithm for use as a national standard, they had to make sure that the algorithm could be used by *everybody*, royalty-free. IBM already had the patent on the algorithm, though. So they granted a "non-exclusive, royalty-free" license to anybody that wished to use the algorithm.
It might be wise to model such a patent license after IBM's. You can find a copy of it in the August 31, 1976 issue of the Federal Register.
Now the only problem becomes finding the money to patent such things.
Why would anyone pay the $20K to put something in the public domain.
Something I think they need to do is have an increimental patent fee. Everytime you file a patent the fee increases. 20, 40, 60. This way companies wouldn't be filing silly patents just to file them. They may be able to afford the patent today, but when they have really good stuff in 10 years, they might not be able to, because of all of their earlier patents.
Just a thought.
I had a hissy fit last year and registered gnupatent.org and pointed it at gnu's home page. I think its a good idea to have an 'open' portfolio of patents ... the collective open source developers produce tons of stuff every day and it wouldn't take long to corral the corporate software patent folks ... if this gets handled right you'll see companies contributing their patents to gnupatent.org in 2005 the same way they're opening their software now.
Wasn't it about two-tree (yes, tree) weeks ago that I wrote to /. suggesting someone begin an Open Patent Bank? I also suggested it in the last /. article about Amazon one-click. It's nice to know that story ideas are posted on the merit of the idea alone.
You have quite a trendy viewpoint, but its wrong. Yes, the patent system is being abused. You know what? It has been abused before. This is not the first industry to have this happen. The solution is to get some people in the patent office that can actually judge these things. Or challenge the patents.
But challenging patents takes lawyers and money. Well, don't worry, as usual, the big corporations are going to protect you here (feel free to continue to bite their hand as it feeds you). They'll knock down the "obvious" patents in time.
As for where the technologies come from, you are completely clueless. The Open Source community? Give me a break! If it were released Open Source, it would be prior art because it would be sprinkled over the net and any simple websearch would turn it up. Nothing that has been patented is Open Source... everything open source is prior art, catch-up work. What happens if someone in the open source dimension actually invents something new? Put it on the net. Make it visible to search engines and such. Blammo, no one can patent your idea and you guarantee that no one will make the mistake of thinking your invention is worth money.
Esperandi
Peeved when people don't believe that they'd be dead and buried without corporations.
Given the rather frontier nature of this vapor-rush, the biggest problem is not so much the patent system, but the problem of convincing existing companies who benefit disporportionaly from the current framework to abide by a more enlightend system of protecting intellectual property. What are the problems?
... especially for wanna-be software architects. I think the general concensus is that the barrier is too low, perhaps it should be in proportion to the size/length of a company's existant so a start firm would only need to patent $1K ideas whereas 800 pound market gorillas would be charged $1M (to prevent illgal collusion and strip-mining of less well funded efforts and ensure that startups get a fair go.
Exclusitivity - the whole patent philosophy is based on the legal exclusion of parties from copying the idea without compensation. The problem is that ideas breed, the more you generate and intermix with others, the more valuable combinations emerge. So rather than trying to protect the ideas, a better solution is to just hire the people with good track record of new ideas directly.
Originality - when is an idea genuinely original and ground-breaking rather than variation on others? Also given the ease of combining software, patenting near-infinite combinations of functions in the hope of picking something that appeals disproportionately to the consumer is a matter of brute force, rather than careful design which should be encouraged
Cybersquatting - claiming an idea and then sitting on it waiting for other people who've actually spent time to develop related ideas and then sinking them is a little reprehensive as society generally prefers that rewards be proportionate to effort. Perhaps a system where the initial patent is free, but you get charged an increasing amount each year to force people to use it or lose it would convince the horders and non-serious players to find someone else to rip off. In principle with general law, you should bust rent-seeking behaviour and try to award protection to those who have actually improved value
Period of control - 17 years is way to long for software. Perhaps valid in the old days when constructing factories took that long to pay for themselves but soft ideas get dated much more quickly. Perhaps have a system combined with other so that after 3 years of a challenge period, you get charged n * 10^(years/5) so that when the cost of protection becomes higher than the utility, the patent is released to public domain and avoid cluttering up the existing record. If ideas expand exponentially, think of how much junk you have to wade through in 2050!
Dispute mechanisms - this is somewhat related to tort reform because when you've got major players squabbling like kids over a favourite toy, it seems a little undignified. As technology moves in waves, how do you prevent another person half-way around the world to patent a similar idea when they're ignorant of your work? People looking back at say barbed wire might consider it rather minor nowadays but back when they first came out, there were major legal battles over who would get the profits from fencing in the west. Perhaps rather than fighting it out in court, they could go to a market drive system of rights (e.g. to distribute) sold at public auction
I don't have any real answers, but I would think the solution is more dependent on thinking through the economic incentives and redesigning the process to suppress negative behaviour while encouraging worthwhile endeavours. To sum it up
- period of initial non-exclusivity so people can spot prior art
- originality barriers in size to company
- reward people for the improved value/implementation
- vary the period of control by increasing the fee/year so to declutter the public record
- look at public auction of derived rights (e.g. to distribute) to establish fair market values
It really is a thorny problem and IMHO the technology/speed of development has just made the concept of patents a dead-weight loss the way it is currently designed.
LL
First, it is worth mentioning that this would be a good idea for enviromentalists or humanitarians who are affraid of things like terminators genes.
Second, the solution is to compramize your principals when you need money, i.e. the worse the application of the patent (the more polution in the enviromentalists case or the more non-OPLed patents it is being used with in our case), the more you charge the person to use it. This means the orginisations which actually hold the patents need to pubilically acountable for their actions.
Third, Universities and Research institutes are satarting to consider using patents as a source of funding. Making the open patent lisence or enviromental patent lissence work could be as simple as pushing these research institutes to put very pro-enviroment and anti-intelectual proterty people in charge. Scientists are frequently few pro-enviroment and anti-intelectual property (the idea that anyone can use it so long as they publish too, i.e. GPL, should be very appealing to these people) so this could be done by pushing these ideas on the scientists that work at these places. We could get people to sign something saing that they will *make a reasonable effort* to not allow their patents to be used for evil and they will only enter into contracts which allow them to back out IF the person is doiong something bad with the patent. If all the researchers are on our side then we will win.
Jeff
The Christian religion has been and still is the principal enemy of moral progress in the world. -- Bertrand Russell
How about a GNU patent license? Something which lets you do anything with the patent provided it stays free. Two good license clauses come to mind: * Freely licensable to anyone who doesn't hold any patents * Freely licensable to anyone who holds patents that are also under the GNU patent license I'm not sure what to do about licensing to parties with non-GNU licensed patents; maybe only allow using the patent for endeavors which do not rely on non-GNU licensed patents.
GollyGee Blocks -- 3D creativity software for kids.
This system should be:
- International in nature, including translation tools.
- Understandable by non-professionals.
- Easily and inexpensive to update.
- Note that this causes it's own problems. I'll use Network Solutions as an example. Because it's so cheap to register your own domain name, companies now register multitudes of them. If it was expensive to register domain names, only the rich could get them.
- networked in nature so that any new item can point to the items it's based off of. Under the new system I would suggest that you reward people based on the strength of their prior art searches, not the weaknesses.
- Uses a seach engine to hunt for "similar" patents. This search engine would check for items with similar "parents", "grandparents", "uncles". This would mean that if I base my patent off a gas stove and a bathtub, I would still pull up a match (x%) with someone who based their patent off an electric heater and a goldfish bowl.
An interesting thesis for someone. Then all we have to do is get the governments to pass laws regarding it.-----
Want to reply? Don't know HTML? No problem.
No Zen is good zen
Is it legal? Yes. Is it ethical...
I didn't make the rules of the game. And I've no choice but to play. So I can only do my best to win.
Why is there a need for a patent? If an idea is properly published then it cannot be patented by someone else anyway? If someone were to create a knowledge base of obvious ideas and provide a way to prove when those ideas were published, then it would be easy to prove prior art. Also, if the KB were easy to use - the patent office could be encouraged to use it when evaluating applications...
Why not work on the issue from both directions: Create a prior art repository AND start searching for patent lawyers willing to work pro bono? Wouldn't one initiative help the other? For instance, let's say an algorithim is listed in the prior art repository. A patent lawyer reviewing a patent pro bono for the community might reply that the prior art people have done their homework. On the other hand, if the same lawyer says the prior art is too weak, we all buy a tee-shirt or two and pay for the patent application.
Best defense against a patent would be copyright. Cheapest and fastest way to copyright, snail mail. That's right kids, write up your idea, photocopy a page for yourself so you remember what's in the envelope, mail the original to yourself and don't open it. The date/time stamp from the unopened envelope is an acceptable form of copyrighted materiel. IE - if you thought of it first, you can challenge the patent, usually through small claims court. You won't get paid for it, but it will revoke the patent. :) I'm sending myself a picture of a spoon as we speak. And sliced bread.
ctimes2
My cube. My friend. My solace. My prison.
...that they're patenting, what is to most people in the industry, obvious technology.
Most of it is so obvious that most of us wouldn't think of publishing the details of the process, let alone try to get a patent.
It's usually too banal to capture our minds, which is why we're so surprised every time a new bullshit patent gets awarded.
M@T
'sapientia potestas est'
First, if one is willing to go to the trouble and expense of patenting something, then an alternative would be making it unpatentable. If an (algorithm / business model / idea) was adequately publicized and clearly granted to the public domain before anyone applied for a patent on it, this should nullify patent attempts without using the patent system to do it.
The above might be worthwhile, creating a good, searchable, central database of otherwise patentable ideas committed to the public domain. The trouble would be keeping it useful without making the submission process as painful as the patent application process.
Second, a major issue with "defensive" patents is cross-licensing. The idea is that if IBM is going to patent the substance of every third memo, then GE is going to want some patents of its own so they can negotiate the use of IBM's stuff. The "defensive" part isn't simply a matter of, "Let's patent this, so we don't have to pay someone else for it later." Rather it's "Let's patent this as leverage when they patent that."
To the extent that the patenters themselves don't like this dynamic, it might be possible to create some institution to fight it, but I don't think yours will do it.
There is already a consulting group that offers the services of searching prior art.
http://www.bustpatents.com/
Why don't we make an effort to gather a list of Obvious Underlying Technologies and provide examples to this company? The hardest task we face is determing *what* we need to protect, since we are continually astonished by these applications for patents. So, someone volunteer to compile such a list and let's work with these folks.
I see that more and more people are turning to unnatural action to battle what has become obvious to me is the shortocmings of a law system that is not fit to stand the trials of the techno age. And while I understand that issues as copyright, censorship, privacy, patents, licensing, and all the ensuing idiocy that stems from laws crafted by people that basically have no clue other than clutter it has become apparent that instead of battling each of the laws individually, or try to find loopholes, left there intentionally or unintentionally, we need a whole new country. We need a country that is built from scratch and a country that will adopt at the core of the governing system, notice that I don't say legal because this may be the wrong model too, the rapid and unhampered evolution of technology. I think that the increasing number of techno rich a fund could be set to buy an island, a nation, or a province where all this will happen. Citizenship exam questions will include induction and the embedding of Sobolev spaces :-)
One way of getting around patent costs & ownership would be to create a new type of patent which basically secures information in the public sphere such that it can't be commercially patented. A "public" patent, if you will. Severely reduce the cost and add a clause such that the patent owner may not profit from the licensing of his/her patented technique. Balance that with a clause that says new commercial patents may not have a public patent at their core and may not simply repackage or collect common public patent routines in common-sense arrangements.
Some innovative ideas, of course, are (arguably) unfit for patenting (One-click shopping? Hello?). But then that's the problem these days, right?
I figured, if I ever made anything patent-worthy, why not apply for a patent for it, but never challenge anyone who uses it?
But this kinda makes more sense. I like it, myself.
------------
Demanding constant attention will only lead to attention.
CNN
We should create a group that would register patents usefull and non, and keep everything open to everyone.. but have a kind of GNU Licensing Agreement attached to it.
First of all I think patents has a need. But, only where big money was invested for the development in the new device/concept etc. But for all the other crap it is just a waste of time. As you stated someone clearly want to make money out of other people's work. (We have to stop this !) For a long time the development of technological innovation was controlled by money (business people) this has to stop. Some technological endeavors are not financially viable but might someday be beneficial the all human kind. In essence what I am getting at is the control of technological advance of the human-race by financially motivated reasons and not the greater good of the human race. (Yes the STARTREK philosophy.) We need more people like JFK to just part with the money and do the cool stuff. (Bill are you up to it ?) Hell I cannot wait fifty years to go to MARS or have kickass electrical cars, breath clean air... That is what I am getting at.
Patents are expensive... I am in the process of working on a couple of software patents now. The only reason to get a patent is if that patent will make you money. pure and simple
If you want something to not be patentable just publish it and as many uses for it as you can. At that point you idea moves into the public domain and can be pointed at if anyone gets a patent that uses your idea, assuming they didn't have the idea first :-).
Take a look at: Software Patent Institute
By releasing your idea to them you are given the patent offices ear because this is one of the places they go when researching a software patent.
IANAL so you should still check with your own before taking any action with you intellectual property.
I don't know much about patenting, but I don't think that mere publishing is suffient enough to make something prior art. If you publish a technology, it is only theortical, now, if no pratical product is designed around this, and someone designs a product before you, and patents it. I think the person will win, and you will lose, although you published it. claiming a right to technology by publishing theoritcal work doesn't sound good to me. Or else, Someone is going to go into the business of patenting anything that could possible work, even if I have no idea how to create that. ...when someone finally puts in time in the lab and comes up with something, they will be sued.
------ Curiosity killed the cat. {satisfaction brought it back | it didn't die ignorant | lack of it is killing mankind
The geist of this is that obvious technologies are patented, but these patents are granted to a class of people, or to a community, or (what the heck) to everyone, thus rendering their legal power useless. You can think of them as Public Domain patents if you like. Well, I Am Not A Lawyer, much less an expert on patents, but I did think this was an angle to the issue that hasn't been addressed, so I though I'd toss it into the collective /. mind for comments or ideas. It does make a good prima facie case, but there are certainly going to be subtleties to patent law or licensing that I cannot see.
/., I'm struck by how many people seem to have a fundamental misunderstanding of what is involved in getting a software patent. Perhaps it's because few of you actually have one, so you're unable to grasp some of the basic concepts.
Every time I read a patent issue on
Hopefully, I'll be able to make a lot of the process clear. You see, I have earned a software patent...two actually (5,727,154 and 5,987,505). While I realize that to many of you, that makes me "The Enemy", hopefully, you'll be able to put aside any initial knee-jerk reactions and listen to what I have to say.
It's not entirely accurate to think that everyone who gets a software patent is somehow wishing to stifle innovation. I'm just a software developer, who had an idea, same as most folks. Mostly, like anyone else, I want honest monetary consideration for my work...which doesn't make me much different than anyone else.
I've seen developers work themselves to the bone, hoping for an IPO payoff. I've seen a lot of start-ups chasing after venture capital. Well, one of the ways to help secure venture capital is to have something truly innovative, which is what a patent is supposed to be. A patent lends instant credibility to the idea you're trying to sell, and makes it easier to convince investors to part with some of their cash. Of course, they get a piece of the pie when they do. However, I'm not here to debate the value of patents. I fully support anyone who wishes to give their ideas away for free to to the community. I'm mostly just want to explain what is involved in getting a patent.
Some people seem to think that the Patent Office gives out patents to software companies like trading cards, and that all it takes is a bit of cash and a lawyer and you magically can create some kind of money-generating patent overnight. This isn't really the case. Most of you seem to be missing the "filing date" part of the published patent. Most patents, software patents included, take about 3 years to get, once filed. One of mine took 4, and we still have one in the works! Patents don't get filed until there's already a good amount of work spent creating the invention, and even more work done preparing for the filing. Then, countless unpaid hours (if you're an original inventor, and not assigning your patent to the company you work for) are spent educating your lawyers and educating the patent office. Of course, it'd be nice to recoup that later with royalties...same as many people work slavishly for start-ups hoping to recoup their efforts later with stock options and IPOs.
Amazon's One-click shopping seems obvious now, with cookies and other technology...but computer technology moves fast. Was it as obvious in September of 1997? Probably not. I had the idea for my patents way back before the internet was really starting to get "big". I remember reading magazine articles at the time about how the whole internet thing "could be" the next greatest thing. Now, just a few years later, some of the scope seems hopelessly out-of-date. Of course, when I was developing my ideas, modem-based bulletin boards were big, and most "internet" connectivity was unix shell accounts, newsgroups, and the like.
Are there abuses? Of course...it's a part of life. Anyone who thinks the world should run perfectly and everyone should give 100% for the good of the community is a bit naive (IMHO). Maybe the world SHOULD work that way, but it doesn't, and never has. But, I see a lot of cries of those "evil greedy corporations abusing the patent system with obvious patents"...and these cries just don't usually jive with the amount of time spent getting a patent. A lot of times, when the patent is filed, the idea truly IS innovative. Perhaps the answer is a shortening of the time during which a patent covers a technology. Judging by the speed at which technology turns over, that wouldn't be a bad thing. But, part of the answer needs to rest with the USPTO..they need better-educated employees, and they need to move patents off of their desks faster (either approving or disapproving them). It seems rediculous to me to have an innovative idea get obsolete by the time the patent number is issued, and it seems equally rediculous to me to think that Amazon will have a lock on "one-click" for the next 17 years or so.
Whats it take to patent something? Is it possible to just patent every idea that you can and allow everyone to use the ideas in the patent for free? That way instead of someone grabbing a pantent for some simple section of code or something, someone else whos more technologically inclined can control that patent. Then they can allow the patent to be used for free.
Outdoor digital photography, mostly in New Engl
(I've talked with a patent attorney to make sure the general idea of the license can be made workable, but I'm holding off on paying for the line-by-line legal debugging of the license until it stabilizes a bit more. If you're interested in discussing and improving the license, there's info on the site about an opl-discuss mailing list you can subscribe to. )
The cost of patents is such that even multi-nationals don't have money to patent everything. Publication is much cheaper. Make stratgic very broad patents where needed and fill in the remainder with both specific and wide publications.
A publication Web page:
Get the OpenSource companies to provide/host a WebServer with search capablilties for all:
OpenSource Publications,
Code,
and Patents.
Make this site known to all the PTO's in every country! This will provide prior art to void IP spaces in the Publications and code from being turned into patents.
It is important that the dates of these submissions be proven. Perhaps a physical burning of CD-ROM backups every night which are mailed to a storage site and not opened. These could be certified mail for further protection.
Second Phase:The folks at genetic-programming.com have the proper framework for dealing with patents. They are using a very large Beowulf cluster, genetic programming, evolutionary method and TRIZ to create viable alternate non-patented methods for accomplishing whatever a target patent does. The same could be done by OpenSource folks in a cheaper and more distributed method.
1) Create a network client like the SETI idle task that is a element of a large virtual patent evolving super computer. {a much more useful purpose for all those spare cycles}
2) Submit and evolve various FreeSoftware Ideas, Publications and Patents on these clients in a shared manner.
3) Collate the various spins techniques and publish them on the OpenSource IP web server.
4) Encourage various webservers, magazines, trade groups and companies to publish or refer to articles from the Web Server. Just require a very visible link back to the original WebServer article, A link to the charter, and a link to the homepage.
5) If some are too critical then Patent them instead of publish and place the ownership in the Public-Domain.
6) A non-profit org. should be created with a GPL like charter to be the Patent Assignee. Any real hot shot lawyers out there want to take a shot at how to frame the charter for this org.?
I have an IDEA! Create a new web site with a form that people can just post IDEAS on. Then Those ideas can be commented on by users etc. Make it searchable! Anybody who posts an idea to the website is making that idea public domain. Any idea posted to that website will then have been considered published and hence cannot be patented by another person/entity! So let's do it! We can create hundreds of thousand of ideas on that site. For example: A metal object with spikes on one end, and a handle on the other, aproximately 5 to 6 inches in length used to pick up food. This object is called a fork! Now AMAZON.COM won't be able to patent the fork cause I publically published my idea!
Actually, the best method of copyrighting would be to register it with the Library of Congress. I did that with almost everything I wrote, back in the days. As I recall, it's pretty darn cheap, plus it makes it (eventually) available to all search engines as a published work once they put it on the Web. Darn hard to patent something to which you already have published copyright. You can copyleft it within the text, if you truly wish to be Open Source about it, too.
Wish we could do that with the Human Genome.
Will in Seattle
Triz Techniques and databases like those from Invention Machines could really help with the "similar" stuff searches.
BTW if you are ever thinking of doing a patent check out the TechOptimizer Professional package from Invention Machines. Amazing stuff to help define your patent domain and clarify your thoughts. http://www.invention-machine.com
The TRIZ journal has some great articles too: http://www.triz-journal.com/
/* Disclaimer: This is merely a rant */
Why does it seem that those who least understand the system always scream the loudest? No where is this more true than when slashdot discusses Intellectual property. Damn few here have ever patented anything themselves. Even fewer have ever developed a usefull product with it. Yet, we have 10k experts telling us how the system IS, and how it needs to be improved.
I'm not an expert with the patent system by any means, but nor am I purporting that we need to toss the system out the window (or anything radical like that). However, I do happen to have a number of friends and family in the high-tech industry, who have developed a number of products and technologies (startups), and I know a thing or two. I have some bones to pick with slashdot, a few of which are:
a) One major slashdot misconceptions is that the startup/entreprenuer can no longer afford to patent, or that it is geared strictly in favor of big companies. From personal experience, I can tell you that this is simply untrue.
b) That just because the patent office OKs a patent, does not mean you are protected. That is, and always has been, the case. The real test is the courts. So most of these "obvious" software patent gripes on slashdot are pointless. It is not new to software, and it hasn't stopped other industry.
c) Intellectual property is still very necessary (not everyone on slashdot disagrees with this, but many do). To extol the virtues of those 2 or 3 open source companies, and draw from that that IP is uneccessary is even more absurd. I hear all these sycophantic calls about Redhat's sucess, that "support" revnues are sufficient. Their only real major success right now is as a financial security. Redhat is not even profitable yet, and the long term viability of their current model is still VERY questionable. Currently, RedHat's "support" division contribution to their income is negligible. What little money they have made, is by selling their software and manuals based AROUND convenience alone, not IP (that much is new). This convenience method probably can't last, atleast not on a microsoftesque scale. Put simply, if Redhat were to ever approach 1 billion dollars in software (convenience) sales, you can be sure that the competition will move in with byte for byte copies of their software (and maybe even toss some extra stuff in), and sell it for half the cost. The point is not that Redhat is a horrible company, but merely that they are not tried and true. To suggest we scrap all traditional business models based on one nominal and questionable success is naive. But I digress..
d) That "defensive" patents are only used by evil companies, and that they cause harm to the system. Again, being very familiar with a few companies that use them, this is not true. I feel that part of the problem is that many on slashdot don't understand that the solution lies in the COURTS, not at the patent office. As such, overly narrow patent(s) can prove to be dangerous. Overly broad patents can, and are routinely, struck down. You erect these patent walls such that you have a defensible position in court. The stronger your position, the easier it is to defend. The less likely you are to be steamrolled, especially by much bigger companies. It is not just big evil companies that use these, if anything, it's even more crucial for a startup.
In summation, if you want a good picture of the state of the patent system, talk to a successful entreprenuer who's actually done it. Not people who've NEVER been there themselves; the academics, open source advocates, lawyers, and company, in general can't see the whole picture. I know my rant isn't going to change the general tune of slashdot, but perhaps I can appeal to a few more rational individuals.
/* Aspestos Suit: On */
I agree that something need to be done about patents, and the existence of a pool of patents that anyone could use for defensive purposes may be very beneficial to society. But pooling creates another problem. Just like in WW1 - where when one country went to war and triggered off a bunch of treaties that dragged the whole of europe in war within the month - the same could happen with a defensive patent pool, where one person triggers off an defensive suit, which triggers off another, which triggers off a titlewave of lawsuits that affects every last company in America.
As least people in this group are finally discussing the possibility that patents may not be all that great for innovation in America after all.
I used to work for a small company that was a wholly-owned subsidiary of major PC vendor based in the northern plains. MOOoving right along, we did lots of cutting-edge software development with just released or unreleased hardware (translation: bleeding edge, and boy was there a lot of blood).
The main thing that we actually got into production was a large whole-machine interface package for a top-end line of their computers. It took a lot of time and effort and even after it was released it didn't really garner much fanfare in the public arena.
I started to do the math and our Return On Investment(ROI) to see why we were kept around. There were 20-25 people of different sorts. Six or seven developers, two artists, 6 platform guys(hardware or process), 2-4 testers depending on the stage of development, two contractors, a secretary, four managers and one VP. The Pres spot is reserved for a corporate big-wig. When I started to examine their cost structure and their revenue I started to wonder. Taking into account the mix of talent, you could use a round figure like $50,000 a year as an average salary, then add on the Human Resource overhead of 50% you get $75,000. Multiply by 25 and you get $1,875,000 in annual personnel expenses. Add to that facilities cost. The office was maybe 5,000 square feet so at a rate of $2/sq foot that comes to $10K a month or $120K a year. The fractional T-1 might be $1K monthly or $12K. Most other costs, like utilities can be lumped together , I'll just say all other costs total to what the rent amount is, $120K a year. So, we have
Salaries: $1,875K
Rent: $ 120K
T-1: $ 12K
Other: $ 120K
-------------------
Total: $2,127K
If the model this software was installed on sells 2,000 units a month, costs $4,000 and the gross margin is %20, that means $16,000 a month in gross profit. Say the software is attributed 10% of the gross profit, that would come to $1,600 a month or $19,200 a year. Granted, my percentage figures can't be accurate but I think they are good guesses. According to my numbers this model would have to sell 100 times better then this scenario, or some combination of 100 times between margin, sales and software percentage, for the subsidiary to pay it's own way.
Obviously nobody would be willing to fund this kind of startup without some prospect of getting something out of it. A major emphasis was on turning in "Intellectual Property" disclosures, a.k.a, patents, mostly of the software variety. Now, don't get me wrong, they had some really cool stuff but when disclosures are part of the quarterly goals and are listed in your annual review, you get the impression that they are important, not to mention that this was blatently stated numberous times, "patents are a very important part of what we do" (actually paraphrased).
Basically, we were a patent factory. It didn't matter as much if none of our products shipped as long as we were disclosing IP. They liked their products to ship as much as the next guy but it was always a struggle to the the parent company to have a clue how to take advantage of the software we wrote. A somewhat common occurance was that they didn't think of us until it was to late for us to provide them with anything useful.
Where is this leading? I thought you'd never ask. The reality is that unless you have one of those super-important patents, like IBM's scrolling screen patent, your goal as a company is to gather a portfolio of patents to defend yourself against other companies with porfolios of their own. There are two scenarios. The first is the company who is collecting a defensive portfolio, the second is the company who plans on aggressively enforcing a patent. They both are caused by the Patent Office's ignorance and that should be the main focus of our ire.
Now, this is my understanding on patent law. We had the legal guys from corporate come and brief us on the issues and this is what I can remember: In the US, you have 1 year after you publis to submit a patent application. Publishing means anything from a technical article at a conference to including the technology in a shipping product. This is normally not a problem but to be protected internationally, more countries require no public (as in to anybody not bound by a NDA) disclosure until after the application is filed. This means that if you want the broadest protection, you wait until after the application is filed before you make the information public. Another aspect is that patent applications are not available to the public. A patent is only released to the public after the application is accepted. This means that the only way for us to combat stupid patents to to be informed when they are issued and then start a challenge based on prior art that may not have been considered during the application process. The submitter is focussed on getting it issued and the PTO doesn't do much of it's own homework so it's up to the public (usually competitors) to challenge patents.
In closing, if we want to take more control of the patent situation, publish information as soon as it's "discovered" and then keep an eye on any patent that involves the published material and then challenge it if it was applied for AFTER the published date of the article or whatever.
We the Sheeple...
he last time this issue came up, I suggested an extension to this approach. In order to encourage people and companies with potentially valuable patents to make them accessible to the open source community,
I wish this could be explained to a PHB without him bursting out laughing. Its a good idea, but your career capitalist does not embrace the concept of community. To them, sharing information over usenet is evil and destructive, not a nurturing process for us all. Sharing valuable howto information to peers (competitors) is vorbotten and punishable by death (well, termination.) It doesn't matter if its a stupid patent, but to a PHB it is property that can be negotiated when needed, but never given away. Its a game of capitalism.
You can't get a valid patent on something if you weren't the first to invent it, so the open process is its own defense. If it can be shown that the "invention" was published by someone else before the "inventor" thought of it, it is unpatentable. When you have a good software idea, publish it ASAP if you want to prevent it from being patented by someone else. Of course, valid patents also require that the invention be "non-obvious" to someone skilled in the art, which is sometimes hard to believe given the software patents that are handed out by the USPTO. In the end, only the courts can decide what is a valid patent and what isn't.
...but if the FSF registers a large number of patents for technologies that ought not to be patentable, we will be faced with the following scenario:
Everybody who writes software will either have to close their source and pray there is never a subpoena, or everybody will have to GPL. All other Open Source licenses will whither away.
If a closed-source developer pisses off the wrong people, they will charge him on suspicion of patent violation. Because so many of the patents will be for obvious technology, it will be really easy for them to find violations, and virtually impossible for anyone to avoid violation.
Knock! knock! This is the police. Open up! We're hear to liberate your software for the glorious people's revolution.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
i'm gonna run out and patent me a for loop. damn. royalties, here i come! thesilicate
Second, the method you describe is an urban legend. It doesn't hold up in court. Ask any lawyer. Ask any professional in a field where this idea's put forth- for instance, I saw this idea debunked in the field of song publishing, where the idea was to write songs and mail them to yourself to prove you had copyright. It doesn't hold up, it's worthless legally. Give me an afternoon with a kettle and a scalpel and I'll steam the bugger open and tamper with the contents- come on, you're not even advocating a seal of some sort.
I'll confess- I have some ideas in envelopes. I had 'em notarized, too. They're still worthless as proofs, and it's about time I opened them and did something else with them. My suspicion is that the best thing to do (in a 'libre' sort of way) is not to establish ways of stashing away ideas in storage, but establishing a way of publicizing the ideas, of giving them glaring publicity in a context where many people can see them and where they can be indexed and searched on by patent examiners, who'd be able to add a "step 247: do quick search of IdeaBazaar for related terms" to their process.
This would not be making any claims to protectability for the ideas involved- indeed, you could express ideas that were (unbeknownst to you) already covered by patents, harmlessly. But it would be perhaps the only sensible way to establish ideas into the public domain in such a way that they couldn't be taken back by the patent process. I know that for me (foolish though this may be) I'm not so concerned for nailing down My Claim to good ideas I may have. I'm justifiably concerned that somebody might sneak in, grab my idea while it's relatively unknown, patent it and then forbid me or anyone else to use it- or for that matter, that for every couple ideas I sit on, one is probably already working its way through the patent office to be locked up and forbidden to me. I find that situation untenable.
So, can we instead have something like SourceForge, only instead it's a heavily searchable hosting service for ideas that are to be established as public domain? Doing this could better the world, lead to widescale deployment of any ideas that are truly great ideas (including competing commercial products that compete on price not IP), and make such ideas widely accessible to individuals. I can honestly say that I would throw my entire portfolio (largely audio hardware, but I'm an inveterate idea-scribbler in all fields) behind such a scheme. Who's with me, and is there anywhere we can start this up?
This is for the purpose of establishing prior art while allowing the inventor to conceal their invention with the intent of future patenting and restricting. If you want to establish prior art, set up a place where people can publicise their inventions on the web, and tip off as many people as possible (and the Patent Office) to the existence of this place. Then anything published there becomes prior art by virtue of publication on a page people are actually reading. Hopefully it would become popular. I can picture corporations reading such a site avidly, because if one corporation tried to patent something covered by such a place, a competing corporation would be able to spend its own money and lawyers proving that the idea was in public domain by referring to the idea site. This is very different from publishing on some dumb little web page. Establishing a high-traffic, glaringly public site would be crucial.
Would somebody please establish a public domain inventions site? Not a 'these are bad patents that got overturned' site, or a 'our little patent pool' site, but a SourceForge-like model for hosting public domain inventions, whether for software algorithms or processes or mechanical contrivances- anything that can be covered by a patent.
I already checked on IdeaBazaar and both the org and the com have been taken by God knows who- they are cheesy 'under construction' pages, and I have no great hopes that either will become what I'm talking about.
We need an unrestricted PD site in which ideas are intensely searchable and attributed to the inventor responsible for them- this would serve as a glaringly public resource for prior art (I have no faith in little personal websites being useful for this purpose), and could further innovation a great deal by providing unrestricted access to publicised inventions.
It's important that this not be bogged down by restrictions that would only stop the site from being used at all. Making a purely public domain site would be cheap (costing only the price of the hosting, and it could arguably be text-only for very efficient use of resources- that or small graphics for illustrations, never for decoration), and doing it with a media splash would ensure that the site _be_ legally accepted as public domain- all you need to do is get two corporations taking note of it, and then if one tries to take anything for itself the other will be ready to send lawyers to argue that it's prior art, and none of the FSF's money needs to get spent at all! :)
Seriously. We need this- we need a resource for publication of _all_ types of patentable ideas in the public domain, and we need it to stick to establishing stuff in the public domain, with no loopholes or extra conditions to confuse the matter. Please, somebody grab some domain that would work for this, and let's set something up. Particularly at first it wouldn't be that costly. I'd have already grabbed www.ideaforge.org and be offering it for nothing to sourceforge (assuming they like the idea), except that I don't have a credit card and since I registered airwindows.com Network Solutions seem to have stopped using any payment option I have available. God knows what I'll do in May when airwindows' two years runs out o_O
Perhaps a company like Amazon, in order to enhance its public relations, might agree to "license" their patent to the free software community, at zero cost, provided that any software developed, that includes their patent, is placed under the GPL.
1) As addressed earlier, who would pay for it? 2) The issue with patents is not ownership, but licensing. People patent stuff not to keep things secret, but to sell the use of it. I assume the idea of Open Patents would be to allow anyone to get a license for free. So... 2a) Who would administer the patent? (includes licensing issues, sales issues, renewals, etc.) 2b) what if someone develops a product for sale based on property protected in such a patent? 3) Who would represent the owner in the event of litigation and on whom would damages be levied and awards granted? A cute idea, but shows the need of study of patent law. - b.m. rafuzo@bu.edu
(also, that the US is the only major country I know of that grants software patents in the first place. Maybe it's time for us to follow what's common practice in the rest of the world...)
The problem with software patents is that the timeframe (17 years) and the overhead in time and money of patent filing, patent search, patent enforcement are far too massive to be useful for software developers.
When was the last time you did a patent search to come up with an algorithm for a program? That's a rhetorical question, the answer is "never" because a patent search is way too time-consuming and expensive. If you need an algorithm and you can't come up with it on the fly or dig it out of your personal library, you go to the library and dig it out of the technical journals. If you're building an industrial plant, and planning on investing years of effort and millions of dollars, it would be practical to do a patent search, but it's completely uneconomic to do a search every time you write a procedure just in case somebody has already patented it.
Besides, if you really want to save your efforts, you need to buy a pre-written library that implements the algorithm. Such libraries are already protected by copyright law; patent protection is superfluous.
The purpose of patents is to give people incentive to publish their inventions, rather than keep proprietary trade secrets. But patents don't do this for software; at best they are an inconvenience for programmers and software companies alike. Some people seem to think patents are some kind of God-given entitlement to "reward inventors as they deserve"; these people are wrong.
In practice, because of the time, expense, and hassle required by the patent system, many software "inventions" are kept trade secrets anyway. Because of the low cost of finding and implementing an algorithm, most software "inventions" are reinvented multiple times by whoever needs them, and the programmers and software companies can only hope that none of the code they just wrote was patented (or at least that the patent-holder will not notice and prosecute them).
Finally, most algorithms are published in technical journals irrespective of their patent status. Journals are a much more effective medium for disseminating this information than the patent office, and they demonstrate conclusively that software patents are superfluous, useless, and destructive.
Patents, like security through obscurity, shows that the system, itself, is inadequate. Perhaps a better justice system needs to be build from the grassroot levels?
The ATVEF spec for enhanced TV already uses this model. Companies who "adopt" the spec get a free license to the patents from Intel and others who spearheaded it. License agreement here.
-Merlyn42
The audience doesn't care if it's hard.
There is a wealth of documentation about on www.openpatents.org and it's way more robust and "open" a solution. I'm shocked that letter was a title headline as opposed to the manifesto of cleverness on which the openpatents website is based.
Joe Torre - X - HardwareEngineer @ Amiga Inc & ZapMedia Amiga, AmigaDE, BeOS, Linuxz, QNX, Rebol, Windoze, ZME: So
Its looking more likely that the USA will litigate itself back into the dark age.
More US companies will move their software and hardware development overseas - out of subpoena range of the idea barrons (of USPO patents) laywers.
It's crap like this patent, that really bugs me. This innovation basically amounts to nothing more than an old-fashioned mailmerge. Output device is changed from printer to socket w/client connected to it. This is a real threat to freedom.
I like the defensive patent idea, but what is to keep the holding company that keeps the patents in "trust" from getting gobbled up by one of the big fish? I mean, big fish could abuse legal process to bankrupt holding company, then buy the holding company off the auction block. This kind of thing has happened before.
Here's a variation on the idea: How's about some opensource projects to infringe these flimsy patents, with easily demonstrable prior art, and some kind of defense fund to test it in court and get it tossed? This will truly free us to write our code. Thing is, it will be very expensive.
cat
Several people have come up with saying that it costs a lot of money to defend a patent. I have one small question for them. Why? What is keeping me from going in and representing myself? It really doesn't cost me anything but my time to go in and argue that they are treading on my patent, especially if there are willing technical experts willing to volunteer as expert witnesses. Whatever big company is troubling me, however, is spending thousands of dollars a day on legal costs. I think it would make sense to patent our ideas, and then rabidly attack anybody who treads on them at all. No skin off my back to show up in court for a couple of weeks, but they can't afford every Tom Dick and Harry suing them for patent infringement. Somewhat off-topic, but I also fail to see how "the big boys" bullied Rio around so much. Couldn't Rio have just stuck one lone member of their legal department on handling all such stuff? If your case is pretty clear, it doesn't seem necessary (to me) to spend a fortune defending yourself. Let the other guy waste his money in repeated lawsuits. Just a thought. Comments?
To get a patent (software or not), you must have an original idea or product.
If anyone, here, has a good idea, you can make some software and GPL and distribute it. Then nobody but you are able to patent it.
So then, what's the point of a "Public Domain patents" ?
I'll do it for cheesy poofs.
Ok. Because I was ranting, I did not use as precise or as complete language as I would normally use. We, in reality, share a similar point of view. Allow me to clear up a few misperceptions you have about my beliefs.
Let me preface this by saying that I was addressing many often stated sycophantic statements on slashdot, and that:
a) I don't think the Patent system is perfect
b) I don't think that the patent system can't necessarily be improved
c) I'm not a big fan of VCs (though not worthless) empirically speaking, though theoretically they're highly valuable.
While I think there is definetly a great deal of theoretical space for improvement in the patent system, particularly where it pertains to the startup, I do not think it is simple by any means. Humans and companies are at constant odds with one another, I don't see any system in the future that will make judicial remedies much less unnecessary. The intellectual property system is messy largely because life is. We are never going to find a perfectly equitable and educated and intelligent patent office, particularly given that it is a government agency. By removing judicial intervention, and resigning ourselves to paper and bureaucrats, we would be subjecting ourselves to a highly inflexible system, that can't adapt very well at all. There are trade offs to be made (yet there still is a fair amount of crap in the middle). As such, we leave it to judicial processes, where both sides can present their case when and where disagreement arises. This is not to say that nothing can be done to improve the state of things, but rather it's not nearly as simple as most on slashdot purport it to be.
When I was addressing the fact that the real test of patent is the courts, not the USPTO, I was referring to the test for the viability of IP protection. I was specifically addressing the frequently uttered concerns of Slashdot Jr.'s about every patent claim, and telling them that the claims are not the same thing as reality. Most of these aggregious patents will not stand up. Furthermore, I was not implying, by any means, that intellectual property and the legal means to support it are, in and of themselves, sufficient. I'd be the first to tell you how important it is to have an excellent CEO, good management team, a good business plan, a differentiable product that people would want to use, capital to finance actual development, and many other things.
While IP alone does not cover blood and sweat, it can provide sufficient protection of your idea, that would allow you to justify an investment of blood, swear, and tears into a product or service. If the entrepreneur lacks the intelligence and/or the capital to properly develop (market, finance, etc) the product and the company, the IP probably won't do them any good anyways. This is part of the reason why I feel that many of these would-be entreprenuers are, in reality, not as greatly affected patent costs as many would indicate. It does erect increased barriers to entry, but I sincerely believe that most competent CEOs will eventually clear it. In short, I believe the capital market system does a reasonably good job, on the aggregate, of delivering money to people who can actually develop a viable product with it.
Regarding Redhat's market capitalization, we have a difference of opinion here. In my opinion, merely returning to the "support" model, does not warrant a market cap of 16 billion dollars. If support is indeed the way to go, as you say, and RedHat remains truely Open Source, why should RedHat retain a market cap. at 16b, when the competition (LinuxCare, et. al) is every bit as prepared to offer support as RedHat is (particularly when the competition is not at all burdened by R&D costs)? My point is not so much that the support market is irrelevant, but rather how can RedHat gain the majority of that market share? In either case, Redhat is unproven, and 16 billion dollars is not even approximately in proportion with the risks. Even under a best case scenario (maximum reasonable growth potential) 16 billion dollars is a hell of a lot.
The only way for a patent to be defensive is to beat up everyone else doing similar things until it can fight no more. So the better term would be 'non-aggressive' patents.
Well, Redhat's valuation is crazy, but I don't think it's crazy when you compare it to it's competitors. The market is crazy right now, and so valuations reflect that. Redhat has significant first-mover advantages, and has the highest name recognition in it's space. It's also aquired Cygnus, which is a well proven business, and will be the source of a lot of their revenue.
Redhat's game isn't just to provide service. What they really provide is "Branding". "Branding" has justified the valuations of companies like Coke, Pepsi, and Heinz, so I don't think Redhat should be any different. Redhat doesn't just brand their support. They use their brand to charge a premium for services, and in the long run that can be VERY profitable.
sigs are a waste of space
"Branding" may sound well and good, but RedHat is fundamentally different from Coke, Pepsi, Heinz, you name it. Besides the fact that Coke and Pepsi are established multibillion dollar companies, with huge sales and profits (e.g, there is little doubt that people will continue to buy Coke next year), both also spend hundreds of millions of dollars on marketing. Take Pepsi, they have a market cap of only 48 billion right now, but revenues of 21 billion, and almost 2 billion in profits. They're valued at 48 billion because they've got significant earnings, not because they own the word "Pepsi".
Furthermore, even though many (myself included) think the differences between, say, Coke and Pepsi are minor, many will say they taste different. Why is this? Because they DO in fact contain unique recipes. If you could buy an exact copy of Pepsi, in the same bottle, with merely different letters, for half the cost, would you still buy Pepsi? Yet with GPL software, this is exactly what you get. You can be sure that you're getting a byte for byte copy, and perhaps even additional propietary features from the competitors who choose to free load.
Now this might not apply to service contracts, but they haven't even started there. Perhaps RedHat has a chance, but is that chance worth 16 billion dollars by any stretch of the imagination? I don't know about you, but I can't think of any service firms in the high tech industry that competes on the same level (no IP) as their competitors (e.g., not Sun, IBM, or the like), yet still enjoys charging a premium based on their namebrand.
In the low technology service industry, I do know of atleast one company that does this, but they compete on price, do a better job for less money, while simultaneously enjoying higher profit margins than their competitors. The problem with this analogy though, is that I don't know if it could translate very well to a large (needs to be to justify a 16 billion dollar valuation so many years off) technology support company. Furthermore, this company is relatively young, with an extremely experienced CEO that knows how to run a company, and relatively small (well if you count the management atleast, which is what they specialize in). Even though this company is still growing quite rapidly, I don't think it would translate very well on the supposed scale of Redhat. Other than that, the analogy is a good one, because the company hires the same class of employee is their competitors, likewise I don't think RedHat can reasonably expect their lowest level support employees to be any better than the competition.
As it stands today, RedHat may have a name for themselves as a GPL contributing company, but they're pratically non-existent in service. Where are their service gurus? (I admit, I haven't looked at their management lately) I'd expect them to bring in an experienced management team at this alone, as it's a very different industry. Merely wanting to do service and holding a name that is popular in a different arena is not sufficient in the corporate arena.
Sorry if I'm rambling, but i'm tired...perhaps tomorrow.
If Redhat's future earnings are to come strictly from support, than I don't see how they can hope to grow all that rapidly. Unlike the software industry where you just merely print more software, service requires correspondingly large teams of people. Can they GROW at even 50% a year, for the next 10 years, and retain their same quality, especially with relatively low margins? (assuming they have high service quality to begin with) I think the service industry is very different from standard software. But if you have any examples that match the various criterion I listed, I'd love to hear them. While no precedents might not mean it is impossible, that market cap still gives me troubles. I would love to be wrong this time.
...back to bed. G'night
But Coke and Pepsi do contain different recipes and carbination processes. Though I personally couldn't give a damn, some people, atleast, can tell them apart. Many more yet claim they can. This is particularly true when it is Coke (et. al) vs. the generics. Whether it is their imagination or not is irrelevant, they feel justified because the recipes are unique. While it may be possible to create a cola that tastes intrinsically better than Coke, people are creatures of habit. They acquire a taste (real or imagined), and demand it.
The type of branding that Redhat needs to do will not hold out, when and if Redhat's market for their software climbs to Microsoftesque scale. Granted, they have generated significant revenues by selling this software at current date. Two points though:
a) RedHat packages used to package commercial software on their CDs (e.g., MetroX), until just recently. Cheapbytes never did this.
b) Cheapbytes CDs come without paper manuals and documentation. When the market grows, the free-loaders will copy this documentation. (RedHat's documentation really aint that great)
c) The market for Redhat's software has been relatively small, and as such the market for virtually free copies is even more non-existent. Your average linux newbie likely doesn't know that cheapbytes exists.
d) A number of Linux supporters, such as myself, have purchased RedHat's official CDs because we believe in what they're doing. I've seen Redhat spend some money on R&D and add value, thus i'm willing to purchase it at a premium. This is not going to translate with the growth, that loyalty won't hold.
e) Then there is what I call "convenience" sales, though somewhat redundant. Redhat has the market share of their own software because the market is small. It hasn't warranted any competitors to invest in properly marketing and documenting redhat's software. If Redhat's software climbs in popularity, you can be sure competition will enter.
These factors in combination leave me little doubt that CD sales will amount to much, not enough to justify even one fraction of their current market capitalization.
Support is vastly different. Deloitte & Touch and Anderson Consulting are heavily established companies with elite reputations in various industries. What is Redhat's reputation? They're a company that writes GPL software, who in the process has collected something of a following amongst techies. Are IT managers and management going to write checks based on this reputation? I have my doubts.
I'm sorry, but this stuff about a company not needing profits is bs. In the short run yeah, a company can do without them for awhile. Today, Redhat may have enough capital infusion such that they don't need to grow organically. But they can't survive in the red forever. Furthermore, as I alluded to earlier, having capital does not necessarily mean that they can properly grow their support division at a rate that could warrant their current market cap.
This is not to say that I believe that RedHat can't grow, but it is not going to be consistently huge growth--not the kind that would justify their valuation. Furthermore, Redhat and the majority of these Dot Coms are way overvalued. Worse yet, most of these companies lacking the profits, or even the revenues, to grow organically on their own, are going to fall on hard times when they no longer have these red hot valuations. These companies are likely going to go the way of the Bio Techs, red hot one minute, and the plague the next...but I digress.