Open Defensive Patents?

Rob Cebollero submits an interesting theory on how to deal with patents in a world of patents-gone-wrong. It's an interesting theory, whether it is or is not pratical or possible, and something I think might be worthy of discussion. Hit the link below to read the whole text.

"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 "

Comments

How about peer review?

[Anonymous Coward]

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.

Interesting idea

[Dirtside]

I can forsee a couple of problems with it, however:

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.

Patent wars

[luckykaa]

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.

Re:Why not just publish?

[wowbagger]

For the same reason that the "Big Guys" don't: leverage.

Let's examine 2 possible scenarios. Both start with me developing some super-cool-nifty algorithm.

1. I document it, post it to /. and several other places, make a registered copy of it. Now it's prior art and cannot be patented. Now, I want to build an open source system around this technology. Oh darn, I need to use LZW for some reason. Well, Unisys owns the patent on LZW, and I have nothing to force them into letting me use it.
   
2. I patent it. Now I want to make my OSS program, and I need LZW. Hmmm, looks like Unisys would like to use my algorithm. You scratch my back, I'll scratch yours. You let me have the rights to LZW, I let you have the rights to my algorithm.
   

This is the basic idea around the GPL: You want my code, you must give me yours. What we need is exactly the same thing in patent space: a series of patents that are licensed such that any OSS project may use them, but any non-OSS program must yeild any patent rights to any other technologies to the OSS movement.

Ideally, what would happen is the patent origonators would sign the patents over to some organization (I'd suggest the FSF) and they would wield them to be the "viral" licenses forcing other patents to be made available to the OSS community.

Before you flame me about being a "communist" or something, be advised: I like making money as much as the next guy. This would not stop a company from patenting their tech and preventing other companies from using it sans fees, it would just allow any OSS program to use the tech. Sort of a blanket license for the OSS community.

BTW: this would be a great way for [RedHat|Andover|VaLinux|Corel|Caldera] to spend some of that IPO money: Buy blanket licenses for some of the more critical tech for the OSS community.