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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?
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.
Plenty of projects, not enough developers...
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?
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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.
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 !
Hates people who have stupid little sigs
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
--= Isn't it surprising how badly I spell ?
- 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.
- 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).
- 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.Yet again, we are saved by patent laws that some feel are evil, and should be done away with.
;), and you can compete with the nasty ugly corporations(of which we hope you have not become).
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
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
Barclay family motto:
Aut agere aut mori.
(Either action or death.)
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.
Tarsnap: Online backups for the truly paranoid
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.
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.