Slashdot Mirror
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 "
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.
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'...
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
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.
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.
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)'
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.
/* 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 */