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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...
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 ?
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.)
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.