Byte Offers An Explanation Of Patent Law

dubl-u writes "I just ran across this detailed explanation of patent law in a recent Byte column. It made a lot of things clearer for me. There's one great tidbit: there's a special kind of cheap patent that's perfect for open-source projects!" You will have to hit that link to find out what he's talking about, right?

Comments

A good piece

[chrystof]

I like the piece, but I still think that, as Jeff Bezos says, there is a need for reform in the US Patent office. 17 years is much too long for most patents on business models and things such as One - click ordering. However, I think it will be quite a while before any of this changes. And I am still a bit perturbed at some of the patents out there. (A wormhole?)

Abolish patent laws

[alsogut]

All patent laws should be abolished and redrawn so that only individuals not representing any corporation can patent something for a maximum of 3 years.

Re:Abolish patent laws

[31switch]

you're so naive. Maybe The State should get all patents right?

Re:Abolish patent laws

[alsogut]

Maybe The State should get all patents right?

Umm.. no. Did you even read what I wrote? Patents should be given only to individuals not representing a corporation.

Re:Abolish patent laws

[Anonymous Coward]

the patent process is very expensive. how realistic do you think your premise is? not very.

Re:Abolish patent laws

[Jason Pollock]

However, all this does is add a stage. Most countries already have this, I have friends who have framed Canadian dollar bills on their walls because they were granted patents. The company they worked for paid them CDN$1 for the patent. It was filed on the behalf of the individual, who then turned around and sold it to the company - British Telecom in this case.

Limiting who can apply for patents has no effect who ends up with the patents, just adds more paperwork and $$ for the lawyers.

Jason Pollock

Re:Abolish patent laws

[TheCarp]

Well personally I would rather abolish patents
alltogether...however...perhaps a slightly more
complex system:

Certainly I think software patents are just plain
wrong. Especially ones dealing with encryption
(you could easily break some patents with a
pencil and paper).

Here are a few things that would make patents
much less diagreeable:

A) Applicant must show intent to actually use
the patent (ie actually produce what is being
patented or use it in a real product). Alteratly,
perhaps an applicant may be granted a temporary
(1 year) patent which will become a real patent
after the current holder (applicant or someone it
was sold to) shows intent to use it.
(sueing people alone should NOT count as "use")

B) Patents should be granted for "an apropriate
amount of time". It should be determined by what
it is and what feild it is for. example: when IBM
applies for a hard drive technology patent...how
long after the patent is filed, on average, does
it take before they can actually deploy it in
a real product? A 3 year patent isn't very
good if it takes 2 years to actually finish and
get a woking product out the door.

C) After the USPTO has made a preliminary reuling
to allow a patent...for a period of 3-6 months
the patent should be made publically
avilable...and a period should begin where the
public are allowed to submit prior art etc
for consideration.

D) Submarine patents. If a company can show that
they were using a technology before the patent
was actually issued (but after its development
by the patent holder - ie they didn't read the
application or copy the idea) then they should
NOT be fully responsible. In fact...the patent
holder should be forced to give them a compulsory
licence to the technology (ie he can't refuse it
and shut them down) for a reasonable royalty, of
FUTURE moneies (ie he should have no claim to
the money from before the infringer knew about
the patent)
[btw the idea of a compulsory licence does exist
in copyright law...you can distribute copies of
music without obtaining any permission legally...
but you MUST follow specific procedure and pay
royalties]

Just my thoughts....any others?

-Steve

Re:Abolish patent laws

[alsogut]

Obviously the fee structure for patents would have to change. What I have proposed is not in any detailed form right now, it's just an idea. It's just a radical idea that I expect to be criticized.

Re:Abolish patent laws

[Alan Jay Weiner]

that's stupid.

Patents have a purpose - to provide incentive for innovation, reward creativity, promote examination of new procedures and processes.

Sometimes those things are an overnight "a-ha!" - other times they're the result of years of work and millions of dollars. Few individuals can afford spending a fortune, only to lose the patent long before they've recovered their costs.

To limit all patents to a short time reduces the reward for long-term hard work - possibly to the point that many things would never happen. The profit motive is very powerful. Don't eliminate it! Use it to spur progress!

- Al -

Re:Abolish patent laws

[alsogut]

I have no doubt that a corporation will be able to protect their rights without the use of a patent simply by keeping that information unavailable to the public. Then, if somebody happens to come up with the same process independently, then so be it. The profit motive and innovation existed long before patents, and there is no reason to suspect they wouldn't exist without patents. Corporations have merely managed to convince people that without patents there would be no reason to innovate. This is ludicrous! The corporations merely want to restrict innovation by monopolizing a process and make holding onto so called "intellectual property rights" just that much easier for them and to keep competitors at a safe distance.

Abolish patents today.

Re:Abolish patent laws

[Desert Raven]

I'll reiterate, you're very naive.

There are a couple areas of industry that really need the protection that patents give. These are industries such as pharmeceuticals, where the amount of time and money put into developing a new drug is so enormous that the patent serves as a way to earn back those expenses before your competitor can manufacture it and sell it for less. Pharmeceuticals are also the reason why patents currently last so long. Since the patent is usually applied for before testing begins, by the time lab testing, animal testing, limited human trials, larger clinical studies, and full FDA approval are granted, there may only be a couple of years left on the patent. And, up to this point, the drug company has invested millions of dollars with no income.

Without patent protection, you can kiss any new drug research goodbye.

That being said, there needs to be much more differentiation in the amount of time a patent lasts. For pharmeceuticals, 17-20 years is fine, it's not a lifetime monopoly, since many drugs stay on the market for 50 years or more, after release.

For "business models", algorithms, software, and other non-tangible products, patents should only be granted for 1-3 years. Patents were intended to allow a new business to recuperate R&D costs, and get a foothold in the market before their competitors could use their ideas. They were not intended to give full life-cycle monopolies.

The system is broken, but it's not evil.

Re:Abolish patent laws

[alsogut]

There are a couple areas of industry that really need the protection that patents give. These are industries such as pharmeceuticals, where the amount of time and money put into developing a new drug is so enormous that the patent serves as a way to earn back those expenses before your competitor can manufacture it and sell it for less. Pharmeceuticals are also the reason why patents currently last so long. Since the patent is usually applied for before testing begins, by the time lab testing, animal testing, limited human trials, larger clinical studies, and full FDA approval are granted, there may only be a couple of years left on the patent. And, up to this point, the drug company has invested millions of dollars with no income.

Yes, I feel so sorry for the huge drug companies that are using their patents to gouge consumers charging ridiculous prices for drugs when they could easily charge less and still turn a profit. As for the investments they make, american drug companies are highly subsidized by the United States government, sometimes paying millions of dollars in development costs while the drug company reaps all the benefits. Furthermore, the drug companies have effectively used patents and WTO procedures to block companies in third world nations from making cheap versions of their drugs that could be used to save thousands of lives. Instead, they must rely on expensive drugs made by american companies which of course they cannot afford and thousands die.

Thank you and good day.

Re:Abolish patent laws

[ariux]

So legislate "special case" humanitarian uses of the drugs. The drug companies don't lose, because they're not getting any business there anyway. The sick win, because they get the drugs. And the coercive nature of government gives the companies an excuse to give those lower or free prices without being criticized for the difference by higher-paying customers from the industrialized world.

Re:Abolish patent laws

[Anonymous Coward]

And so what you end up with is nobody filing for patents and keeping as much as possible a secret. Three years is too extreme. I would go for 17 years OR 10 years after patent is put into commercial use, whichever is earlier and no extentions.

Re:Abolish patent laws

[Joe Decker]

Instead, they must rely on expensive drugs made by american companies which of course they cannot afford and thousands die.

Here you're assuming that the drugs in question would exist at all otherwise. There's ample evidence that that isn't the case. In fact, the US system of patents and incentives has clearly been responsible for drugs that treat Crohn's disease, leprosy, Sickle cell anemia, particular types of lymphomia, Tourette syndrome and cystic fibrosis, as well as a lot of the development of the fast-growing genomics industry--an industry which has the opportunity to really change medicine.

In the end, often this comes down to one of the most difficult kinds of moral choices: Do I save 1,000 people today, or 100,000 in ten years. Dump patent protections and you may very well save 1,000 people today, but you may condemn thousands or millions to death in the future who could have been saved by new research. The question is made no easier by the uncertainty in the results of future research, but the trends in genomics are very encouraging.

A real argument can be made for either answer, but make no mistake, the real moral question behind this issue is not so simple as "drug companies kill thousands."

--j

Re:Abolish patent laws

[Anonymous Coward]

He was just stating something equally absurd to what you posted.

Re:Abolish patent laws

[OAB]

drugs that treat Crohn's disease
Is this a cure, or just another 'helps with the symptoms' ?

Re:Abolish patent laws

[Anonymous Coward]

Except that if a company spends, say, ten years and several million dollars developing a new drug, then it's not terribly fair if a competitor comes along, spends a year or two and far less cash reverse-engineering it, then sells it cheaper (low R&D costs) putting the first company out of business. This would greatly hinder the development of new drugs.

Re:Abolish patent laws

[Joe Decker]

The latter. AFAIK, CD is still incurable.

--j

Re:Abolish patent laws

[Arker]

The profit motive and innovation existed long before patents, and there is no reason to suspect they wouldn't exist without patents.

Very true. The purpose of the clause of the constitution that authorises the creation of patents was to encourage inventors not to keep their inventions secret but rather to give them a legally protected time-limited monopoly, in exchange for revealing their invention publically and making it available to all after the monopoly term ended.

That wasn't a horrible idea, IMOP, but it's definately being abused horribly at present. The worst part is there is a bit of truth to Bezo's contention that Amazon and other companies must abuse the system simply to protect themselves from others abusing it.

Perhaps abolishing patents is not the right answer - but abolishing software patents in particular should be considered. Given the purpose of patents in the first place, it definately follows that fairly obvious applications of pre-existing technology (one-click shopping?) should certainly not be patentable. But as long as they are, businesses are pretty much forced to grab as many as they can, if only as a defence against the other guy doing it...

Re:Abolish patent laws

[the eric conspiracy]

Umm.. no. Did you even read what I wrote? Patents should be given only to individuals not representing a corporation.

Your proposal has a lot of very severe problems. For example, how are you going to get corporations to fund research into new technologies when they don't end up owning the rights to the technology. If you actually are succesful in preventing corporations from owning patents, it would be the end of commercial R&D in the US, which would result in much slower rates of technological progress - and economic growth. Look at the recent economic expansion we have had - the Federal Reserve believes that much of the credit for the combination of low unemployment and low inflation is ddue to increasing worker productivity fueled by technological change. Do you really want to throw that in the crapper?

Even under current law, patents are granted to individuals (the inventors) now. The way corporations end up owning the patents is that the inventors are working under standard employment contracts that require them to assign the rights to the patents to their employers. If you try eliminationg this, the employer will just change the provisions of the employment contract to something like requiring a royalty-free exclusive license from the employee.

Re:Abolish patent laws

[collinl]

As far as I know, it is difficult to legally distinguish between a person and a company in law - both a recognised entities with many similar rights.

Lyal

Re:Abolish patent laws

[collinl]

Well, probably A is covered by paying upwards of $20k over 2-3 years - if that's not a form intent, then what is?
re B) Right now it appears 17 or 20 years is considered the appropriate amount of time. The time to get something to market must start AFTER the patent applciation is lodged - you can't patent anything that is marketed as it is then prior art, and no longer unique.
re c) The publishing of patents after an initial patent office examination already occurs, and any interested party can challenge the patent application.
re D) - Isn't this just commercial good sense? Why would I cause someone to shut down a profitable line of business when I can ask for a reasonable market fee, and gain access to a ready-built market that has cost me nothing to build??????

Lyal

Re:Abolish patent laws

[TheCarp]

> Well, probably A is covered by paying upwards of
> $20k over 2-3 years - if that's
> not a form intent, then what is?

What I had in mind, maybe I didn't specify well.
I think that if patents exist then anyone with
a patentable whatever should be able to get a
patent...so $20/k for 2-3 years sounds like a
very high "bar" to get over.

What I would like to see is that if a company has
no intention to use a patent for something other
than legal bullying, then they should either
not get the patent, or lose their patent.

> B) Right now it appears 17 or 20 years is
> considered the appropriate amount of time.

I personally think it is too long. Of course
perhaps 17 years would be a good maximum if
A was implimented (ie...a company shouldn't
be able to stop producing a product, and then
use its patent power to force others to pay up.
if the current holder has no intention to use
the patent for other than bullying...they should
lose it)

C) I did not know that. Very good to know.

> D) - Isn't this just commercial good sense?

In some way. Again,...the goal of my idea was to
think of a system where a patent does what it
needs to, and doesn't function as a club to
beat people around with. \

of course as I said...I dislike patents anyway.
I generally think that recognizing a good idea,
then taking it and applying it where you need
it is a "Good thing" and patents seem like a
device to get in the way of people using good
ideas.

Re:Abolish patent laws

[Anonymous Coward]

In UK law at least (and i think prob in US) a corporation is a person.

Interesting exerpt...

[The_H0und]

I found this exerpt to be of particular interest:

Public Law 106-113 introduces a new "inter partes" patent reexamination procedure that lets any third-party initiate an interactive reexamination of a patent based on new evidence of prior art. By facilitating the two-way exchange of argument and evidence, the PTO hopes to mediate many of the disputes that currently end up in legal action. When a reexamination leads to a finding that patent claims or portions of patent claims are invalid due to the existence of legitimate prior art, the claims can be stricken or revised in reasonable ways and a "reissue patent" will be published. A patent may even be declared invalid in its entirety as a result of reexamination. Providing this inter partes reexamination mechanism should avoid a lot of unnecessary lawsuits and keep the PTO squarely in the middle, and therefore accountable for its mistakes, when infringement or interference disputes arise.

BBBM

[Money__]

Bring Back Byte Magazine.

They have always been a fantastic source for unbiased and acurate reporting on computer trends from the hobby days of computing up to present day world-wide distrubution on the web.

Any platform, any language, any diciplin, Byte has always been an interesting and informative read for many many people in the IT field. I miss the articles, and I miss the unbiased insights. I still have my "wall-o-Byte" archive on the bottom row of my bookshelf and would like to continue adding more print editions in the future. What does it take to publish a magazine these days?
_________________________

Re:BBBM

[dgb2n]

I was also a former, very satisfied subscriber. You can bring down a website by /.'ing, why not bring back the magazine. Write to them at their Feedback Form and if we get enough folks, may they'll consider it.

I just did.

r/

Dave

Provisional patents

[ajs]

Provisional patents solve the smaller of the two giant problems out there. That is, they solve for the laziness of the patent office in doing research.

However, it only solves for it spottily and does not solve the problem of people getting silly patents that they can then use to shut down open source efforts that might hurt their proprietary software sales.

The right way to deal with this would seem to be to establish (as has been discussed elsewhere) a non-profit "patent custodian" that people can donate their patents to. Then have that organization use licenses for its patents as a lever to extract open source licensing for other key patents. For example, if the GNOME folks had a few good patents, they might be able to get Adobe to release their color model handling for use in GNOME programs (and their derivatives). This really should not be an issue, since any GNOME derived program is subject to the GPL, and that means that most of Adobe's rivals won't touch it.

good examples for some of the projects out there are the way Perl does its advanced regular expression stuff and the way that Slash manages moderated discussion forums. If there were patents on all of these things, licensed to any open source effort that wanted to use them, the patent situation might be livable.

I don't think this will happen, though, until the open source world begins to truely believe that the USPTO will not be magically reformed and turned into an organization with a clue.

Re:Provisional patents

[Anonymous Coward]

Getting a patent is NOT CHEAP. I'm currently working on it (put down that flamethrower, its for hardware) and its looking to cost about $15,000 minimum. So assuming you spent $15,000 to patent something, would you turn it over to a "patent custodian?"

I'll gladly donate my hacking time, but 15,000 a considerable amount of money.

Whew.

[Arctic Fox]

Who knew Byte was still around!

I remember my dad's stacks of Byte magazines when I was growing up.
Last time I was home, i dug through some.

10 Mb MFM Hard Disk for your PC-XT.... $2500 bucks!

Re:Whew.

[shepd]

>10 Mb MFM Hard Disk for your PC-XT.... $2500 bucks!

Oh yeah? I have the first issue ($1.50, September 1975)... No hard drives in there :-p

On the cover:
- Byte Small Systems Journal
- Which Microprocessor for you?
- Cassette Interface -- Your key to inexpensive bulk memory
- Assembling your assembler
- Can YOU use the SURPLUS [ASCII] KEYBOARDS? (You bet you can!)
- COMPUTERS -- the World's Greatest Toy!

Back page:

- Generated by man
- [Picture of MITS ALTAIR 8800 Computer]
- The Affordable Computer.

There is an interesting read from editor Carl Helmers, discussing "what is BYTE?". References to EBCDIC, IBM system 360, life, and "bootstrap off tape" are there.

And, the first time I've EVER seen this mistake. A direct quote from the column - "...making things that quote ``work'' unquote."

Another article describes how to make the game of life. And, there are circuit board patterns you can etch.

A full page contest challenges you to name the name of the manufacturer of a 16-bit microcomputer chip. Prizes: 16 bit microcomputer chip, 8080 CPU, 8008 CPU.

And, just as any REAL computer magazine should have, there are ads for REAL computer repair/testing hardware. Like curve tracers, oscilloscopes, and waveform generators. :-)

1k SRAM, just $3 (some things never change...). 8008, $30.95. 8080, $135. Core memory (350 ns), 8k, $275. ASCII keyboard, $35. Amazingly, some things have gone UP in price over the years. A 7400 NAND gate, just $0.23 back then (single quantity), now: $0.83 at DigiKey.

There's an ad for something I've never heard of: The Association for Computing Machinery (acm).

I didn't start reading Byte until a year or two before it went out of print (it was still a good magazine then). I got a bunch of byte issues free from someone, #1 happened to be with them.

I'll have to sort through them someday... :-)

SIR -- Why Didn't Amazon Use?

[mochaone]

It appears that this type of patent does exactly what Jeff Bezos wanted to do when he patented one click technology -- it establishes prior art and prevents someone else from coming along and patenting the same technology. If Jeff Bezos was telling the truth when he said Amazon was using the patent system as a defense mechanism to prevent future competitors from copying their technology and putting them out of business, the SIR patents would seem to be the way to go. It wouldn't give Amazon the right to sue anyone for damages but it would put a stop to anyone from stealing their "technological innovations".

I wonder how Jeff will talk himself out of this.

Slashdot...thanks for the great story. If we could moderate stories (which I think is a good idea), I would give this a +5 for informative. Keep them coming like this !

Re:SIR -- Why Didn't Amazon Use?

[Shalom]

A SIR patent only makes it so that other companies cannot patent it themselves and tell Amazon they cannot use it ... but other companies can still use ("steal") the idea.

This is a fundamental difference. Filing the patent they filed allows them to be selective about who uses it, and I believe that is what they were trying to do.

--John Keiser

Re:SIR -- Why Didn't Amazon Use?

[Webmonger]

Err.
You're right. It would prevent B&N from "stealing" Amazon's one-click "innovation". But only because you can't steal what's already free.

". . .statutory patents are only used when the patentee wants to guarantee that no third party will ever be able to claim patent protection for an innovation".

What Amazon wants is different. They want to prevent B&N from copying their practices, and this patent is one of the sticks they choose to wield.

Re:SIR -- Why Didn't Amazon Use?

[Anonymous Coward]

And this is why Jeff's comments make absolutely no sense to me. He claims to be acting in a noble fashion. He claims to be patenting to be defensive and stop others from pulling a Unisys. But who IS the noble one in this case? B&N certainly *did* end up copying One Click.. So I suppose they have a right to sue over that.

But what about this patent on affiliate programs? Here's something that is so blatantly obvious, that was used before the internet and is now used in places like CDNow. Did they really 'invent' this idea? Who's next in the litigation lineup?

Re:SIR -- Why Didn't Amazon Use?

[mochaone]

I agree. The only thing more offensive than Amazon patenting web technologies like one click and affiliate programs is Bezos's holier than thou attitude with regard to the defensive nature of the patents. He should be honest and admit that Amazon is attempting to profit by patenting trivial applications using technologies (HTTP,HTML.Perl, etc.) given freely by true internet benefactors.

Re:SIR -- Why Didn't Amazon Use?

[EJB]

Not to defend Bezos' suing of Barnes&Nobles, but the typical use of defensive patents is different than you describe.

Say a company threatens you with a claim that your company infringes on their patent X, then you can claim "we don't know about that, but look here we got patent Y that you are infringing on, so just shut up or we'll sue you in response."

SIR patents provide no alternative for that.

EJB

Re:SIR -- Why Didn't Amazon Use?

[Carnage4Life]

He claims to be acting in a noble fashion. He claims to be patenting to be defensive and stop others from pulling a Unisys. But who IS the noble one in this case? B&N certainly *did* end up copying One Click.. So I suppose they have a right to sue over that.

It's interesting the way people post to Slashdot without reading up or doing research first.Nowhere in Jeff Bezos' open letter on patents does he claim nobility nor say a word about Unisys. He does not and has not talked about Amazon's motivation in obtaining the said patent...from all indications this was just another shot by Amazon in the ongoing war with B&N, which is a rather Microsoft-like (attempts at monopoly to crush competition) company by the way.

PS: How come nobody on Slashdot ever talks about the fact that Jeff Bezos said On a related issue, to further try to help with the prior art problem, I've also agreed to help fund a prior art database. This was Tim's idea, and I'm grateful for it. Tim is poking around to find the right people to run with that project.

Re:SIR -- Why Didn't Amazon Use?

[Anonymous Coward]

oh shut up, you little bitch. do you think you're the only fucking person who does research? get off your fucking high horse, you faggot ass bitch.

Re:SIR -- Why Didn't Amazon Use?

[Anonymous Coward]

I think you misinterpreted the nature of my post. Jeff certainly did try to sound noble with his explination. He tried to justify it as defensive. Which is most certainly was *not*. I have read the said letter and that was my interpretation.

Only "Real Patents" will help us.

[Forge]

Actually this won't do squat to help us. It only protects us in those instances where we created and patented the specific invention in question before anybody else.

Unfortunately these overly broad and near meaningless Internet patents, Business module patents and software patents that are stirring up trouble would still be a problem. How many OSS diehards would have thought of patenting "One click shopping" 2 years ago? I am willing to bet that even the geeks at Amazon who implemented this code didn't think of patenting it until the patent lawyers Bezos higherd went looking through the lab for anything add.

However in the event that we did have a cheap Patent on "One click shopping" we could still be sued for abusing the "Affiliates patent". In that event we would have no defense but to search for prior art to the Affiliate program. Just as if we had no patents at all.

However if we had a full patent on something ridicules like "threaded discussion on a web page" and someone decided to sue us for violating some unrelated patent ( Like "One click" ) we would only have to find evidence of them using Zope's "SquishDot" and the case is over. Out of court settlement with a written agreement to never file patent suite against any free software developer.

This is where Amazon can show weather it's a jungle or just a big river. Put the ridicules patents it owns into a pool managed by the FSF and LI. Ask every member of LI to contribute some patents to the pool. Then we can come back and talk about being attacked. Simply put it's not that difficult to assemble a set of 50 to 100 ridicules patents that every new or dynamic business on the planet violates one of. ( Those that have done nothing new for 30 years are protected since everything they do is prior art :).

Re:Only "Real Patents" will help us.

[Mark Shewmaker]

This is where Amazon can show weather it's a jungle or just a big river. Put the ridicules patents it owns into a pool managed by the FSF and LI. Ask every member of LI to contribute some patents to the pool.

That's more or less what I'm trying to promote with the Open Patent License at www.openpatents.org.

What is scary now

[jjr]

However, technology that enables a business process is patentable.

If a programer is asked to create an application
to automate a business process should he worry if
that process itself is patented? What if that
programmer work for himself and he creates such an
application so now A big corporation can tell him
he can't use that application to help himself in
his business. Now that is wrong.


http://theotherside.com/dvd/

Re:OOG HATE PATENTS

[Anonymous Coward]

Do you mean "Ogg"? :)

STUPID HOMO SAPIEN

[Anonymous Coward]

NO NO NO, ME OOG THE OPEN SOURCE CAVEMAN! YOU GOT PROBLEM THEN OOG BREAK HEAD WITH OPEN SOURCE CD!!! OOG HUNGRY NOW, GO EAT MAMMOTH!

That's a bit extreme...

[Millennium]

However, what about something like the following:

1. A patent applicant must show intent to actually use the patent. For utility patents, this means marketing and selling the device, other patents work as appropriate. No intent to use, no patent.
   
2. A patent expires if the patent is not "used" as defined above within one year of its filing. However, an applicant can get an extension on this by showing evidence that the device could not possibly have been marketed within that time. Research reports would suffice (showing that the product is still in the development stage). The patent can be extended as long as the applicant can continue to show that the patent cannot yet be marketed, up to a maximum of five years (two years for software-related patents).
   
3. A patent expires at a set amount of time after the patent is first "used" (as defined above). This time period is the same seventeen years for individuals, five years for corporations (three if the patent is software-related). If the patent transfers, the time period is adjusted accordingly (so if a person holds a patent for six years and sells it to a corporation, the patent immediately expires). This amount of time cannot be extended by any means.

No doubt the most controversial part of this will be the different time periods for individuals and corporations. The rationale behind it is that a corporation has significantly more resources than a person does. One person would be lucky to have more than one truly significant invention in his lifetime (truly major breakthroughs -as in, on a scale you very seldom see from individuals or even corporations- notwithstanding). A corporation which can't push out something new and patentable in five years needs a new R&D department.

Re:That's a bit extreme...

[Anonymous Coward]

And how are they going to enforce that?

I think it's a bad idea anyway. I have a patent on region of interest client database of parts of an image across a network using client-server architecture (to save bandwidth and processing), and I haven't used it in years because of other research. I should lose it just because my business plan isn't accelerating at a rate of 1 year? Why? Thousands of programming hours were put into it.

Potential flamers: My patent is for defensive purposes only (Although, AFAIK, not many people are using it).

Re:That's a bit extreme...

[pmc]

However, what about something like A patent applicant must show intent to actually use the patent. For utility patents, this means marketing and selling the device, other patents work as appropriate. No intent to use, no patent.

This has the obvious problem of "how do you show intent?" - there is an entire criminal justice system based about trying to infer intent from actions. Using this in the field of patents will just be a nightmare.

It has a less obvious problem for small inventors. There are people who invent for a living. They business model is (simplisitically) 1) invent something 2) find a large company who may be interested in exclusively licencing it 3) make a deal. Under your system all the large company has to do is stall, and the patent will lapse.

A patent expires if the patent is not "used" as defined above within one year of its filing. However, an applicant can get an extension on this by showing evidence that the device could not possibly have been marketed within that time.

Again, you are getting into a legal quagmire by having to provide evidence that something couldn't be done. Proving a negative is always tricky, and when there is a lot of money at stake, well - that's just lawyer heaven.

A patent expires at a set amount of time after the patent is first "used" (as defined above). This time period is the same seventeen years for individuals, five years for corporations (three if the patent is software-related). If the patent transfers, the time period is adjusted accordingly (so if a person holds a patent for six years and sells it to a corporation, the patent immediately expires). This amount of time cannot be extended by any means.

This is just a bad idea. Patents, in most countries, are granted to individuals, and assigned to companies. If this, or anything like it is passed, then the companies will not bother with assignment. Instead "invention clauses" will say "will make the company the exclusive licencee for the sum of one dollar" as opposed to the current "will assign to the company for the sum of one dollar".

Most inventors are also "companies" and will assign their patent to their company for explotation - there are all sorts of legitimiate reasons for this: tax, separation of ideas, limiting liability, and so on.

It would be very difficult to change it so that it discriminated against big companies in the manner you wish to. I think that such discrimination would be counter-productive as it doesn't really solve the problem - patents stymying instead of promoting innovation.

Re:That's a bit extreme...

[the eric conspiracy]

A patent applicant must show intent to actually use the patent. For utility patents, this means marketing and selling the device, other patents work as appropriate. No intent to use, no patent.

This would put hundreds of R&D companies out of business. For example, there are many small biotech companies who exist only to do R&D for large companies. They have no intention of ever manufacturing anything. This would be a total disaster for innovation. It woul also eliminate funding of university R&D programs by corporations.

A patent expires if the patent is not "used" as defined above within one year of its filing.

Impossibly burdensome on both the R&D process and the patent office. Guaranteed to create a whole new bureacracy and branch of the legal profession, along with expensive lawsuits. PLUS there is already a mechanism in place that achieves tha same effect - the patent office charges 'maintenance fees' on patents. If you want your patent to continue in force, you have to pay a fee every year to keep it active. It owrks; a quite review of the US Patent iles shows that most patents expire due to non-payment of the fees rather than lapse of the default 20 year time period.

five years for corporations

Better sell your stocks. You just wiped out the Pharmaceutical industry and crippled all industrial research. Legislation like this would destroy any technologically derived economic growth in the US.

Re:That's a bit extreme...

[symbolic]

This has the obvious problem of "how do you show intent?" - there is an entire criminal justice system based about trying to infer intent from actions. Using this in the field of patents will just be a nightmare. Not as much as you seem to think. Tied to a patent would be a prospective delivery date. If the date isn't met, the applicant shouldn't have to show that something *couldn't* be done (and therefore, prevented them from meeting the deadline), but what they *have* done in order to meet their deadline. In a sense, I believe a patent can be (or perhaps should be) viewed as a contract with the American public, which basically says something to the effect, "Because I'd like the special protections offered by a patent, I have this new technology I'm working on, here is a description of what it will accomplish, and here's the date by which I hope to have it available on the market." If they can't bring it to market, or they can't bring it to market within a reasonable time frame, why not give someone else the chance? Unlike our current system, this will make patent applicants more accountable.

Re:That's a bit extreme...

[um... Lucas]

What's to stop a corporation from funding individuals in exchange for exclusive licenses to their patents? Then they've got a 17 years monopoly on the technology, and your new rules do nothing.

I like patents. I think some are dumb, though, but any new strategy has to treat everyone equally, otherwise people and companys will find the loopholes most beneficial to them.

"This patent needs to be assigned to an individual so we can have control over it for 17 years" or "i need to start a corporation and assign my patent to is so i get other favorable treatments" are both possibilities that will arise if there are two different plateaus for patents to sit on.

And remember, corporations are individuals. They can be sued, own property, etc, and no one owns that property aside from the corporation itself, unless you want to look down the lines and say shareholder A owns 10% of it, B has 5%, C has 2%. I don't think it works that way, in terms of patents, though.

Re:That's a bit extreme...

[Mark Shewmaker]

Potential flamers: My patent is for defensive purposes only (Although, AFAIK, not many people are using it).

Would you be interested in submitting it under one of the Options of the Open Patent License, under development at www.openpatents.org?

(That is, once the license reaches version 1.0.0, and is fully reviewed and finalized and legally debugged, not at the work-in-progress state it's in now obviously.)

Business method patents and the Internet

[ariux]

I'd say the effect of business method patents will be to separate the innovation from the people who use it; some orgs will design and license business software, while other orgs will pay for it and put it to use.

This is in contrast to today's E-business world, where the company that needs a site hires software developers to write it.

It'll be less frantic and chaotic ("We need the new add-ons finished now! We need to top 50,000 customers by Friday to get that infusion of capital!"). Software may get better and more "polished" (those working on it won't have to worry about other, unrelated duties), but this could also cool down the wave of easy enterpreneurship; you can't just get some people together and make a site, you must buy the software from its registered providers, with clearly defined and unavoidable costs.

This will bring down the "lawless" and insurgent Internet and make it much more like other industries.

Patents bring market forces to bear on inventions by treating them as property. Except in cases of market failure, most of which trigger government intervention today, market forces ensure that people are compensated in proportion to what they create or provide - if they try to charge more, no-one will buy (it won't be worth it to them), and why would they want to charge less than they could fairly get? As the value of one person's work is usually far more similar to the value of another's than today's compensation system (with its fickle grants of meteoric success and failure) reflects, the distribution of wealth will even out and the middle class will reappear.

Because employers will no longer have an incentive to provoke genius from their employees (reinventing the wheel better won't help you if you can't legally use it), stock options and 72-hour workathons will die out. In their place will come 9-to-5 jobs, incremental raises, and pensions - have to motivate employees to quality somehow - and it'll join the other mature industries of society.

Everyone takes a collective sigh and returns to "normal" life. Nostalgic movies are made about the "fast and free-wheeling" early days of the Internet. Curtain.

Re:Business method patents and the Internet

[Anonymous Coward]

And what, you're saying this is a good thing?

Oh boy. All the obvious inventions get licensed out in the future and everybody has to pay royalties to do anything, no matter how simple it seems. Happy days!

That's oh so certainly just what I want.

Yet again, we are saved by patent laws...

[dbarclay10]

Yet again, we are saved by patent laws that some feel are evil, and should be done away with.

Think about it this way: without these laws, the rich would be richer, and the poor would be dead. You, a fairly capable inventor/developer, have created a nifty gadget that would sell fairly well. You start manufacturing, and then a rich guy down the street copies you. He has slave labour in a third world country somewhere, he makes them cheap, and sells them cheap. All of a sudden, the life savings you spent making this thing are down the tube. And there's nothing you can do about it.

Now, imagine a world with intelligent intellectual property patent laws. You, the inventor, patent your invention. You have twenty years(or something like it), to make your money. The patent expires, and everyone starts making your gadgets. Luckily, though, you've had time to ramp up production(hopefully not using slave labour ;), and you can compete with the nasty ugly corporations(of which we hope you have not become).

I once read someone say that without very strict patent laws, open source would be impossible. And I agree. The GPL is based on those laws, and others like it. If they didn't exist, there would be nothing stopping people from using code developed in a free and encouraging community in their own proprietary works, without recognition, without compensation.

The SIR patents seem to be a windfall to the open source community. With these and the GPL behind us, we can lay the groundwork for a re-invention of computers. The way we use them, and how we understand them.

I am not lawyer, nor am I a rich man. But, if someone set up a charity drive/fund for open source SIR patents, I would gladly donate what I could spare.

David B. Harris

Re:Yet again, we are saved by patent laws...

[FigWig]

Imagine you are a humble inventor. You come up with a clever idea and receive an overly broad patent. Now you have a government sanctioned monopoly on a huge industry niche. Now the other guys down the street cannot even start a business in the same field without infringing on your patent, so they starve to death along with their families, while you sail your yacht off the coast of Barbados.

The point of patents is to promote innovation by making it much less profitable to keep trade secrets and to promote alternate designs. For example patenting a specific design for a fuel injection system, not patenting the idea of a fuel injection system. That way the guys down the street have to work to find another, possibly better way to solve the problem. Overly broad patents only serve to hinder industry.

The GPL has NOTHING to do with patents!!! I don't know where you got that idea. The GPL is based on copyright law and the fact that a copyright holder of code has the right to dictate licensing terms for its use.

Re:Yet again, we are saved by patent laws...

[Giraffit]

You seem to miss an important point.
No one, not even RMS says we should abolish all patent laws.
We say that they should be re-examined to fit our modern industry, thats all.
For example - the patent life-time of 20 years is way too long for a fast changing industry.
It may be perfect for the automobile industry where the time from design to production is about 10 years. But in the software industry its less than 3 month!
Software patents are diffrent in another plane - the patent laws are specificly written to patent working products - not ideas. only in the software industry the lines between a product (code) and an idea (algorithm) is very blurred.

Re:Yet again, we are saved by patent laws...

[H�kon Enger]

He has slave labour in a third world country somewhere, he makes them cheap, and sells them cheap.

How does this apply to i.e. "One-Click Shopping(TM)"?

The GPL is based on those laws, and others like it.

Like you, IANAL, but I thought the GPL was based on copyright law? Copyright law generally prevents anyone to copy your code, and it applies automatically to everything you write. You don't have to (pay to) register it somewhere.

The SIR patents seem to be a windfall to the open source community.

However, they wouldn't do mush good in the case you described above...

Re:Yet again, we are saved by patent laws...

[Arker]

IANAL

You are confusing patent and copyright. Copyright was designed to deal with written works, and things similar. Copyright is limited, in that the first amendment (free speech) must be accomodated, hence provisions for "fair use."

Patents, although authorized by the same provision of the constitution, with the same goal, were designed for inventions - basically gadgets. The priveleges granted under a patent are much broader, with no limitations to accomodate free speech. Which made perfect sense in earlier times.

But now, the line between written work and gadget has been blurred by the use of computers. I can write a work on my computer, put it through my compiler, and produce a gadget on my virtual desktop here. Or I can stick it on a web server, make the appropriate entries in a few files, and make a gadget on the virtual desktop of everyone that visits my web site. Now the question here is whether my creation is a written work (the source code which makes my gadget work) or a gadget in its own right - whether I should be allowed a patent or only a copyright.

RMS and many of the rest of us feel that a copyright is the better answer (never mind that copyright has been extended at the very time it should have been shortened - that's another kettle of fish.) However many are getting very broad patents instead in the same situation.

Another issue here is that, while the laws involved make it seem that copyright should be easy to establish, but a patent should be much harder, it seems that as long as you have the money it's really no harder to get a patent. A patent requires a novel and not trivial invention, and an absence of prior art, a copyright requires only a unique written work. But the patent office seems to be severely dropping the ball on this - they are granting patents left and right for stuff that appears to be quite trivial and not really novel. Such patents can later be nullified - but only if someone comes up with a great deal of money to hire lawyers and litigate it, which is a significant hurdle. Even the arbitration-like option the article mentions is a significant burden that really should not be there in the cases of many of these patents, like the two notorious ones Amazon was granted, and many others, that simply should have never been granted in the first place, and would not have been if the patent office had the expertise/would take the time to properly evaluate the applications before granting them.

Re:Yet again, we are saved by patent laws...

[blakestah]

I once read someone say that without very strict patent laws, open source would be impossible. And I agree. The GPL is based on those laws, and others like it. If they didn't exist, there would be nothing stopping people from using code developed in a free and encouraging community in their own proprietary works, without recognition, without compensation.

Open source is based on COPYRIGHT laws, not patent laws. In fact, patent law allows the creation of something of which the source is available, but it is illegal to use (such as RSA encryption). Remember, patent law grants you the right to prevent others from using your invention - it in no way facilitates others being able to use it, except that it encourages you to bring it in the open during the patent protection period.

The SIR patents seem to be a windfall to the open source community.

They provide no measure of protection that well defined prior art does not provide. The only issue is that they will be easily accessible to the patent office (whereas prior art may not always be).

Re:Yet again, we are saved by patent laws...

[theMAGE]

Yeah right!

I think you missed one point: the fact that you have a patent on that gadget means that YOU have to track down the guys who are infringing upon it and YOU have to SUE them to get some compensation.

Imagine the amount of money you have to spend on lawyers in a battle against a rich man/company.

You will end up settling and giving your patent away so you can pay the lawyers...

And how much it cost to watch the big markets (USA, UK, Germany, France) to see if a product identical to you is not selling there?

Everything boils down to how much money you can spend.

while were at it

[Free Mumia]

lets /. judge yohn at:Hon. William H. Yohn, Jr. c/o Leonard Weinglass 6 West 20th Street, Suite 10A New York, NY 10011 New Trial for Mumia Abu Jamal

Re:while were at it

[Anonymous Coward]

lol

Re:while were at it

[god_of_the_machine]

Normally I don't respond to offtopic posts -- but I had to post this for the record.

There is another side to the Mumia story, check out this National Post story. The NP is Canada's major national newspaper -- and this is a good balanced article that counters a lot of hype surrounding the case.

Hmm...

[Anonymous Coward]

Well, if more businesses learn about this, it can mean a cheaper and overall better way for them to have defensive patents. We won't find out that some company 5 years later having a new boss finds a defensive patent and decides to sue everyone.

This also means Bezos can't use the "they're just defensive patents!" excuse, but he already showed that they weren't really that by sueing B & N. But I'm fairly sure no amount of public shouting will make him give the patent up.

BTW, anyone ever check out http://www.bookpool.com ? Seems to beat amazon on a few prices for books and the site design looks nice enough.

Mumia Abu Jamal can lick my sweaty nuts!!!!!

[Anonymous Coward]

Fuck you and your lame ass crusade!
He should be fucking shot and left for dogs to eat!!!

GIVE IT A REST..THIS OOG SHIT IS LAME!!

[Anonymous Coward]

fUCK YOU FOR THINKING I WOULD HAVE SOMETHING TO SAY!!!!

Re:OOG GET FIRST POST

[troller2]

Moderators suffer from permanent hangovers. Just look at all those posts marked "Offtopic" or "Flamebait" for no reason. I mean, I bet this post will get moderated down for some B.S. reason also.

YOU DARE INSULT OOG!!!!

[Anonymous Coward]

OOG SPLATTER BRAINS WITH LINUX BOX!!!!! OOG NO TAKE SHIT FROM LAMERS!!!!

Why are patents examined?

[cperciva]

Why do patents get examined at all?
As I understood it, the idea of patents being examined by the patent office was to determine if they could be valid -- in other words, to determine if there was prior art, and if the invention was sufficiently 'novel'.
Why do this at all?
Wouldn't it be perfectly good enough to simply have a 'registry of neat ideas', where people could, for some tiny fee, register a neat idea they had, after which point anyone wanting to use the idea would either have to negotiate with the inventor OR show prior art OR show that the invention is not 'novel'?
It seems to me that this is effectively what happens already -- the patent office seems to issue patents on basically anything, and the validity of the patents is only going to be sorted out in the courts anyway.

OOG SUCK MY SWEATY BALLS

[Anonymous Coward]

THEN HE EAT MY SMELLY SHIT BECAUSE HE IS KING LAMER!!

Re:OOG SUCK MY SWEATY BALLS

[troller]

frickin wussy ACs-why don't you show you have balls and stop hiding? goddangit, this is abuse of the AC system.

Domain name for new org...

[Gerv]

If we did set up an organisation to collect and hold patents for the Open Source community, we could use:

http://www.opensirs.org

(Say it out loud) ;-)

Gerv

Re:Domain name for new org...

[shepd]

>http://www.opensirs.org

>(Say it out loud) ;-)

You know, after looking at that and saying it out loud I realized the problem a few people might have with Open Source: It is almost a homonym (sp? ;-) for Open Sores.

Oh well, GPL isn't confusable, at least.

OOG OWN YOU

[Anonymous Coward]

OOG FUCK YOUR MOM LAST NIGHT WITH BIG CAVEMAN DICK... OOG FILL YOUR MOMS BELLY WITH OPEN SOURCE CAVEMAN FETUS!

Problem with this idea

[Chagrin]

One possible problem: using your example, what happens when a competitor to Adobe duplicates the color management principle as a "plugin" and then GPL's that part of the program? They've successfully gotten around the patent.

I kinda do like the idea of a non-profit entity to act as a holding company for patents though... perhaps this would make a good task for the EFF.

Your greed is showing

[Anonymous Coward]

That greedy smell is starting to stink up the place. Please go away.

You don't understand

[Anonymous Coward]

It's common practice in the computer industry to defend yourself from lawsuits through the use of crosslicensing. Obviously, you can't do that with SIR patents.

Won't work

[Anonymous Coward]

How can these patents defend them? They can't. You need a traditional patent you can trade for a license on whatever patent you're violating.

SIRs are not patents and they are not cheap

[werdna]

here's one great tidbit: there's a special kind of cheap patent that's perfect for open-source projects!"

Wrong on both counts. SIRs are not patents and they are not cheap. A "Statutory Information Registration" permits an applicant who has no chance of getting a patent issued, to have the USPTO print out a pretty certificate with his disclosure, complete with an issue date, a number and everything. One doesn't need to file an application, you can ask for a SIR from the get-go. (But there is no real reason to do so.)

It is not a patent, does not give you the right to place a patent number (or patent pending) on a product and grants no right to exclude. While the SIR is not examined against prior art, it is examined for compliance with all the formalities and disclosure requirements of Section 112 of the Patent Act, and thus should be reviewed by someone experienced in preparing patent applications.

Ultimately, it has no legal effect at all, except that it serves as prior art to the extent of its disclosure. On the other hand, so does every other publication, whether issued by the PTO or not. We would be far better off publishing a "Journal of Open Source Invention," to provide a source of prior art than relying upon SIRs.

And they are certainly not cheap. The patent office fee for an SIR is $920.00. (As compared to $620.00 for a full U.S. Utility application filed by an individual).

For the open source community, I see no upside for SIR applications.

See technocrat.net .

[llewelly]

There is a more informed discussion of this issue over on technocrat.net .

Re:Interesting exerpt...except for one BIG problem

[ludes]

There is a HUGE problem with the new inter partes reexam provisions. If the patentee prevails before the PTO in the reexam, the third party CANNOT appeal the decision to the Court of Appeals for the Federal Circuit (the exclusive appeals court for all patent cases) and cannot assert the same piece of prior art as a defense in a later infringement lawsuit. However, if the third party prevails, the patentee CAN appeal. This is a tremendous downside to the process because the third party is forfeiting its day in court in favor of a decision by the PTO but the patentee faces no such risk.

Hang him!

[Chaostrophy]

Ever occure to you that someone could be 100% guilty and 100% framed? That would apear to be the case here. The cops framed him, but it sure looks like he either killed the cop, or was trying to (with the uncaught acomplice). Or running towards a cop who was beating up his brother, with his (Mumia's) gun out was not a sign of hostile intent towards the cop?

There are plenty of clearly inocent people on death row. Sure, they are not charismatic, why not work to free them, instead of this guilty one?

My fav moment: The judge who turned down one of his appeals was a prosicutor in the case (you'd think he'd remove himself).

Gawd, I need a spellchecker!

AHAH! (Moderators please read parent)

[Arker]

This is interesting. I suspected something of that kind, can you provide a source for that?

The name changes, but the song remains the same

[sansbury]

Now that geeks have taken over, it seems the only thing left for non-geeks to do is to prophesy the end of geek power.

Economic theory, fortunately, serves only to undercut this line of thinking. It is not only the case that a programmer today is more valuable than a bank teller, but also that a programmer today is more valuable than a programmer was twenty years ago, becuase he is more productive.

Technology is like crack for capitalist economies. One hit is never enough. So long as there is a drip of additional productivity to be found (and there always is), there will be plenty of work for technology professionals.

Likewise, it is nearly axiomatic that there will never be enough people to do it all. That's because every productivity advance (better programming languages, cheaper hardware) only leads to wider adoption. The neighborhood McDonald's today has more computing power than much of NORAD. Chevys run on more silicon than the Space Shuttle. Slight hyperbole to be sure, but elucidatory nonetheless.

And even after the revolution subsides, tech workers will still fare better. After all, mechanical engineering has been around for centuries, and yet ME's still make better money than average.

-cwk.

No, not at all

[werdna]

Provisional patents solve the smaller of the two giant problems out there. That is, they solve for the laziness of the patent office in doing research.

There is no such thing as a provisional patent. You can file a provisional application for a utility patent, which can be "re-upped" into a full-fledged application if you did it right. But nothing here would have the results you claim.

If you are referring to Statutory Information Registrations, referred to in the article incorrectly as "SIR Patents", they are a joke. See my earlier response on that subject.

SIR is no different from a published article

[werdna]

It appears that this type of patent does exactly what Jeff Bezos wanted to do when he patented one click technology -- it establishes prior art and prevents someone else from coming along and patenting the same technology.

As to prior art preclusive effect, a SIR is no different from any published article. And the mere existence of prior art doesn't mean that a given application will have the SIR cited against it. (As noted, SIR's are more expensive in terms of filing fees than issued patents for most entities).

Re:SIR is no different from a published article

[Anonymous Coward]

As noted, SIR's are more expensive in terms of filing fees than issued patents for most entities)
------------
that's comparing the filing fee of a patent ap with the filing fee of an sir. you have to pay another $1000+ issue fee to get an issued patent. an issued patent is also useless if you don't pay the maintenance fees after issue.

Re:SIR is no different from a published article

[werdna]

The issue fee for an individual is $605.00, but it is certainly an additional kicker.

I am not sure what you mean about a patent being "useless" if permitted to lapse for failure to pay maintenance fees. All that is lost is the right to exclude -- the document remains prior art, stays of record and continues to be used by searchers. In this same sense, of course, an SIR would be useless starting from the day it was prepared!

SIRs are expensive and meaningless

[werdna]

I am not lawyer, nor am I a rich man. But, if someone set up a charity drive/fund for open source SIR patents, I would gladly donate what I could spare.

You would be wasting, or at least inefficiently using, your money. SIRs are not cheap and they are not patents. For far less money than the minimum $920 per disclosure, we could establish a foundation to publish (and provide quality re-editing) an open source journal for these processes, which would have equally effective prior art effect.

It would be far cheaper, and far more helpful for the movement, if the same applications (to the extent patentable) were filed as applications, matured into patents, and pooled for use in cross-licensing against the real bears. This presumes, of course, that we are actually creating patentable inventions out here in the open source community.

It really does work pretty well

[werdna]

The perception that the office issues patents on "basically anything," while understandable, is greatly exaggerated.

It is certainly true that a decent lawyer can probably get something out of any disclosure, it remains to be seen if the claims allowed have any meaningful effect. In most art areas, a survey of USPTO records provides a fairly complete account of the state of the art. Unfortunately, this is not so in software arts and methods of doing business, owing largely to the history of decades of practice (centuries in the latter case) before patents were permitted.

There already exist "registries of neat ideas." They are called trade and academic journals. And they already constitute prior art.

I have a proposal which I think more effectively balances the relevant considerations more adequately than the status quo. You will also find there a brief discussion of the examination process, what it does and more importantly what it does not do. But I certainly would not do away with examination.

Trust me, its not as easy in practice as it may seem.

Here's the citation

[ludes]

The prohibition against appeal or use in a future suit by a third party is explicit in the law itself. Find the law at

http://www.uspto.gov/web/offices/com/speeches/s1 948gb1.pdf

Appeal: page 49 of pdf
Future suit: page 44-45 of pdf

Re: Open Patent License

[Mark Shewmaker]

The right way to deal with this would seem to be to establish (as has been discussed elsewhere) a non-profit "patent custodian" that people can donate their patents to. Then have that organization use licenses for its patents as a lever to extract open source licensing for other key patents.

That, (as has been discussed here and elsewhere), is pretty much the idea I'm trying to promote with Patents in the Public Interest Inc., and the Open Patent License, under development at www.openpatents.org.

For example, if the GNOME folks had a few good patents, they might be able to get Adobe to release their color model handling for use in GNOME programs (and their derivatives). This really should not be an issue, since any GNOME derived program is subject to the GPL, and that means that most of Adobe's rivals won't touch it.

Exactly. (Especially since plug-ins usually are considered part of the work-as-a-whole with the thing they're plugging into, the patent license should be written to require the whole work to be an Open Patent work of some sort for the license to have a possibility allowing the patent to be incorporated into the plug-in. That way no one else could thwart the license by using just certain patent in non-Open Patent ways, which is as issue to be concerned about, as Chagrin pointed out in response #71.)

Also, to be fair, I would like to point out that I haven't seen anything that would paint Adobe as a villian in this area. They weren't too enthused about software patents six years ago, according to Douglas Brotz's statements at the Public Hearing on Use of the Patent System to Protect Software Related Inventions; the fact that they personally have patents that they seem not to have used offensively against Open Source efforts means I can't really ascribe any malice to them. In fact, even Microsoft hasn't used any of its software patents offensively.

I know you simply used Adobe as an example of a company that has happened to effectively be holding up progress, but I just wanted to point out that their interests probably mostly align with ours on the let's-not-get-sued-over-software-patents issues. I can't see that Adobe for instance has specifically worked to stop Free Software development, but I can see that their defensive patenting has had that as a side effect. I want the Open Patent license to be able to provide a way for them to safetly stop slowing progress without harming the defensive advantages their patents give them, as well as benefiting them by allowing them access to a larger Open Patent Pool of patents--I want the Open Patent License to be a win-win game for all players.

Re:OOG GET FIRST POST

[Anonymous Coward]

Amazing, it did get moderated down too!

I think its a good thing for my Karma rating that I can post this as an AC

What?

[Anonymous Coward]

Defensive patents are so someone doesn't patent something you are using and sue you.

There's already a registry for software prior art

[Animats]

There's a registry for non-patent prior art at the Software Patent Institute. The USPTO searches that database, which contains hundreds of thousands of old manuals, papers, and such. The emphasis is on "old"; though; there are over 1000 UNIVAC references, but only two Linux references. It's useful, though, in that most of the classic algorithms are in there somewhere.

How to embarass the USPTO

[Ed Avis]

It's well known that the USPTO is granting patents which never should have been granted, patents on something which is already well-known. For example, Unisys managed to patent a simple linked list, and the LZW algorithm is patented _twice_ - the USPTO couldn't even manage to check the later application against previous patents.

Now the patent office uses software, right? Here's what you need to do, if you have the money:

- Apply for a broad patent which will cover some software used by the USPTO. This software could even be Windows, sendmail or whatever.

- Hope it gets granted. If not, try again with a slightly different application.

- Sue the USPTO for patent infringement and refuse to license the patent to them under any conditions.

- With luck, the patent office will be forced to go to court arguing that the patent should never have been granted.

- Hope that newspapers pick up the story.

What I said...

[Simon Jester]

http://slashdot.org/comments.pl?sid=00/03/13/23525 8&cid=85

Only probably not as clearly. Good it finally got some attention. Thanks, Timothy.

Simon Jester

SIR

[Hard_Code]

So, basically, an SIR is an OpenPatent? It is a patent which servers /only/ to relinquish all rights to the public domain, and to prevent others from claiming a similar patent. That's good news. I suggest all programmers and companies (in the software industry) start using these "ethical" patents.

Re:SIR != Open Patent

[Mark Shewmaker]

So, basically, an SIR is an OpenPatent?

Although it's something close to Option 5 of the Open Patent License under development at www.openpatents.org, I wouldn't say it's the same thing.

It is a patent which servers /only/ to relinquish all rights to the public domain, and to prevent others from claiming a similar patent.

Presumably, it merely prevents others from getting a patent on the exact same thing. However, they can still make a slight modification and get a patent on that, and given that the USPTO has issued multiple patents on the same things in the past anyway, I don't see how an SIR from a practical point of view would guarentee that couldn't still get a patent on this same "invention" covered by the SIR.

That's good news. I suggest all programmers and companies (in the software industry) start using these "ethical" patents.

Why? It simply costs a lot of money and doesn't theoretically gain you anything over the cheaper but just as ethical method of simply publishing the idea. But if you're wanting to spend thousands of dollars anyway and act ethically while you're at it, and get some defensive benefits as well as the possibility of getting access to patents that are blocking your software development, why not go the full route to get a real patent, to license it under the Open Patent License, (once finalized)?

Re:SIR != Open Patent

[Hard_Code]

"Why? It simply costs a lot of money and doesn't theoretically gain you anything over the cheaper but just as ethical method of simply publishing the idea."

Because merely publishing the idea is a lot less effective in keeping others from patenting that idea. Merely publishing the idea puts the responsibility on patent office workers to do due diligence and actually /find/ your publishing to establish prior art. From the recent article on the patent office, we know that patent office workers don't spend near as much time as they should researching prior art. I'm not very familiar with the Open Patent License, but if it does a better job than an SIR, then great. I just wasn't aware that there was already sort of a provision for this sort of thing.

Re:I WANT COPIES!

[talonyx]

naw

--

Re:SIR != Open Patent

[Mark Shewmaker]

Sorry, I was a bit more confrontational in my wording that I should have been.

Here are my thoughts:

1. I would hope that getting an actual patent and using the Open Patent License would give the inventor as much protection against duplicate patents as an SIR would, (once everything's all finished and the license is in a usable state.)
2. If (1) is the case, and obtaining a patent is in the same range of cost as obtaining an SIR, then I would think (1) woiuld be the way to go.
3. If both obtaining a normal patent or a statutory patent is too expensive, then theoretically simply publishing the idea should be enough. However, you point out that it's not the case in reality, and we certainly have seen evidence of that! I wonder, however, how much effect submitting that same idea to the Software Patent Institute's database would have. (USPTO officially supports the SPI's database, I think. I was under the impression that they actually did searches there--although even in that case I'm not to optimistic that they'd even find a prior art for a bubble sort if the "inventor" didn't use the word "bubble" in describing the algorithm.
4. The fact that I'm pushing the Open Patent License means I'm sort of biased in thinking "Open Patent" should refer to something more than a patent equivalent of public domain, hence the immediate "No, no, no", and instant "Why would you want to do that" confrontational response. Next time I'll wait a few more minutes and edit the post again before submitting it.