Slashdot Mirror
Patents For Open Source Projects?
A nameless reader writes: "Salon has an interesting article on an organization and a company that are teaming up together to try to provide free software programmers with patents to protect free software in general from the corporate grip." The Salon article is about IP.com, a company (surprisingly, with the Patent office's promise to check their database) planning to put patentable ideas online as evidence of first creation, for a much smaller fee than filing a patent. If the idea appeals to you, check out openpatents.org as well -- the idea there being that the right to pool patents is a good incentive not to keep technologies locked up for more than a decade.
As such, anything put on this database would easily become an absolute minefield and not safe to use- because there's not enough space given for an exhaustive enumerating of applications, and patents would be cheerfully filed on all the best applications- and because they would be implementations, they'd be rubberstamped through like all patents, never challenging the underlying concept but making it impossible to _implement_ it in the real world without legal exposure.
What a bad idea. No thank you. This is so not the way to solve the problem. Frankly, it provides an avenue to worsen the problem... except in the abstract sense of 'joy! now they can't patent a gear!'. Riiiight- instead, smart people backed by corporate lawyers are put to work 24/7 patenting every conceivable application of the gear. You're better off not baiting them that way...
I totally concede that this is more like what patents _should_ be... IP claims on specific implementations of solutions to problems. I totally see that.
However, this hardly makes it sensible for ME to put ideas in a place where others can go forth and patent all the best implementations and then sue me to stop me using them! I'm sorry. This is well-meant but fatally flawed.
It also gathers together all the 'most valuable' ideas for cherry-picking so that unrelated people can go do just that, and will. Yes, it's good for companies to have to come up with specific implementations of ideas and patent only those- but implementations of YOUR ideas?
This isn't a patent reducer. It is the basis for a patent _explosion_. The resulting flood of patents will be much more like what patents were supposed to be. They'll also cover pretty much every implementation of common ideas that you could think of, making it more or less impossible to use the 'free' source ideas in the database without jumping through some serious hoops, or licensing your idea back from a company that patented the implementation you need when you gave it access to the underlying concept and said 'Ha-HA! Now you can't patent this underlying concept like some of you guys have been improperly doing!'
Just keep away from this one... the backlash of implementation patents is going to be horrible, if this catches on. And, ironically, if you discount the fact that the basic inventing was done by someone else, the implementation patents will hold up far better in court, being more specific and less over-reaching in their claims!
The only difference is- source code IS an implementation. That would require the parasite to make another implementation and then patent that. With what you're proposing, it is only possible to put up basically an abstract. The most obvious implementation then falls to the parasite, so it's actually a bit easier for them seeing as they would have to come up with an implementation that's not a direct copy of someone else's implementation anyhow.
Again- with published source code a person would have to re-implement something obvious (like a shopping cart, or 'one click' button) before patenting it and being allowed to use the patent. If we give this database any ideas it's a simple matter of the parasite just whipping off the _most_ obvious implementation and patenting that. There's no question that they'd get the patent, and it's quite likely that they'd be allowed to use it.
None of this is good but, respectfully, I would suggest that building up a database of idea abstracts is worse. Better to build up the 'database' of open source which is at least _implementations_ that can't reasonably be directly patented by third parties without possibly awkward re-implementing.
How is this any different from today, with copyright, where all programs and algorithims written down in academic publications (or publications of any kind) are available for all to use? If you invent an algorithm, and you wish to allow the whole world to use it, the existence or nonexistence of copyright has little effect on your world. Release the algorithim or program to the public domain and all can use it. Copyright doesn't impact your right to do that in any way.
I also disagree quite strongly with your statement that without copyright, protections against proprietary absorbtion would be lessened. Anyone who was around and using computers in the late 70s and early 80s knows exactly what the world of commercial software looks like in the absence of strong copyright protections. Before there was sufficient precedent to establish that software is protected adequately by copyright law, this was a subject of considerable debate and contention. Commercial software vendors, without adequate copyright protections, simply employ even more invasive and cumbersome mechanisims to protect their ability to profit from their labor. Hardware keys (dongles), obfuscation, enforceable end user license agreements, NDA's, and hardware copy protection all existed to fill in the vaccuum and made users' lives far more difficult before we gained adequate copyright protections for software.
A post-copyright world will not be friendly to users, or the FSF.
Bottom line -- if you want to give away the code and algorithims you produce, please do so. But stop with this twisting of logic that implies that your ability to make your code free is in any way helped by eliminating the protections available to those who wish to restrict the distribution of their code and algorithims. Especially since the FSF is one of these groups.
At least admit what you mean is that you want to be able to benefit from the hard work and labor of others no matter what their views on the matter are.
People should have the right to control how the value they create is used. Metallica believes this, I believe this, and Richard Stallman obviously believes this. Copyright and Patents are the tools we use to protect this right, and they need to exist in some form or we'll lose this basic right.
The Big Myth of the FSF is that end users care at all about the source code of the software they use. End users want to use software that does what they need and does it well. The way to convince users that free and open is better is to ensure that free and open software is superior to the alternatives. If you truly believe that "The War will be won by convincing the end users" then why bother with trying to destroy the capacity to create proprietary software? If free and open is inherently superior, why not just build good software and render the proprietary stuff meaningless by comparison?
Convincing the end users is not a social, educational, or political battle. It's plain darwinism. You'll convince the end user that your methods are better the day those methods produce software which is more useful and beneficial to the user than the alternatives.
And yes, this doesn't make patents any nicer. Just a little easier to fight.
Thanks
Bruce
Bruce Perens.
I agree that software patents are bad, but this will help fight them.
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
But I agree that I'd rather eliminate software patents. That's going to be a pretty big fight.
Thanks
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
In other words, if the invention existed before the applicant conceived of it, a patent would not be granted. The one-year rule actually applies to what you publish before you apply, not what others publish before you conceive of an invention.
Of course, the applicant can lie about their date of conception, and thus these things go to court and the court has to find if there is sufficient proof regarding the date of invention. If you want to win in court, you make a confidential disclosure to a third party who would later testify about the disclosure, like a notary or an attorney. I have received one such disclosure for a possible future Open Patent, and gave the inventor a PGP-signed proof of disclosure that he can later use in court and verify against my public key. If that ever got to court, I'd probably be called upon to testify as well.
In most other nations, once an invention is published, including by the inventor, it can immediately no longer be patented.
Public disclosure by the inventor within a year before filing is also an option to establish priority under U.S. law, but prevents the grant of a patent under non-US law, and thus is not much used.
Bruce Perens.
What we do not have is any form that could be searched by a patent examiner. They do text searches of computer disclosure databases, which means that you have to (a) percieve that you have made an invention and (b) write the disclosure, to be of use to the patent examiner. What we have on those source CDs is more useful in court, but it would be better to block the patent from ever being issued.
Thanks
BrucE
Bruce Perens.
Thanks
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
Bruce
Bruce Perens.
I agree that software patents are bad. As someone whose Open Source project appears as prior art in a patent, reducing its scope (search for "Perens" in the patent database), I do think this might help us a bit.
Thanks
Bruce
Bruce Perens.
If OpenIP is interested in doing this, it would not be that hard to add a similar database to the IP.Com database, and I am sure that the fellow in charge would welcome the assistance. (I will be emailing him offline with the suggestion, btw.)
The real work would probably be in convincing the USPTO that this new database would also be worth consulting.
What do you think? Would this be worth pursuing via this site?
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
Actually, the FSF would rather copyright didn't exist.
This is one of the most frequent GPL/FSF misconceptions I see here.
Yes, the GPL does require copyright to work. But that doesn't mean the FSF is pro-copyright. The GPL was a license built to attempt to promote free software in a world where copyright is the law. If copyright wasn't the law, there would be other ways of promoting free software, and it would probably be easier to do so.
For example, in a world without copyright, all programs or algorithms written down in academic publications (or publications of any kind) would be available for all to use. Admittedly, the GPL's protection against turning things proprietary would be lost, but it would also be less necessary (since compilation, encryption, and obfuscation are known not to be effective protections against plagiarism anyway).
For example, see the essay at the gnu website here for an example; other essays in the same place may be more apropos.
Jules
-- Any sufficiently advanced technology is indistinguishable from a perl script.
This concept makes a lot of sense. Everyday, developers (commercial and open source) run the risk of infringing upon somebody's patent. And, in many cases, software patents have been wrongfully issued with no checks against prior art databases.
A central, searchable repository of open source concepts will slowdown the rate at which software patents are issued and raise the bar on what actually does get patented. If a software patents are to exist, then make the patent seeker work for it and prove they did something worthwhile.
As I see it, a $20 publishing fee is not such a bad investment if:
1) The database is truly searched for prior art before issuing a patent.
2) Existing software patents are actually revoked if prior art can be established because of a submission to this database.
3) It makes it easier for someone to find prior art as it relates to their development efforts.
I have no problem with individuals making money from the development efforts (Hell, I do). But, software patents are ludicrous and put us all at risk simply because we didn't patent an obvious concept (like Amazon's one-click concept). Thus, I do not support software patents in any way shape or form and they should be abolished.
In its place, I would rather see a system for enforcing recognition on the use of "patented" material as an acknowledgement of having come up with a great idea (and publishing it). But, there should be no financial penalty for use of "patented" software UNLESS the recognition/accredidation is not offered. In such cases, a heavy "license" and royalty fee may be pursued with all legal costs incurred by the violator.
RD
Better cut that out. CMGI has a patent on that.
Someone you trust is one of us.
Hello Open Source Advocates! I'm starting a service where, for a small fee, you can give me all your patentable ideas so that I can protect them. IPthieves.com will patent your idea, with no additional cost to you, and keep the information in our protected database. We assure you that we will NOT parent your ideas then use them to steal your software and sue you to your grave. All this for only $20 per patent. Submit 10 patentable ideas and get a free "IPthieves.com" T-SHIRT!
Hm, I thought one of the big tenets of Open Source was "expose the information so I can make an informed decision myself."
That's the same principle that gives us peer reviews, shallow bugs, security auditing, and frank discussion on how to improve things.
To say that the USPTO should keep the patents sealed is to return to the world of "users don't need to have access to the source code."
The USPTO has apparently promised to include a scan of such databases when it's aware of them. It's a two-way street and a mutual responsibility to avoid infringement. Just because Open Source projects are un/underfunded, doesn't mean they can scoff at their responsibilities to avoid infringements.
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It is not logic[al?] why the USPTO protects only proprietary software developer's interests and not open source code software developer's interests.
The USPTO has no such discrepancy in its function. They don't care who files for patents, but it's clearly an advantage to be organized if you want the USPTO to pay attention.
Open Source people are able to file for patents as well. There's nothing about patent law that says you must (1) keep your method proprietary [it's exposed anyway], or even (2) vigorously defend your patent against every infringer [unlike trademarks]. File for the patent, even on an obvious thing, and then just sit on it. That keeps anyone else from filing the same stupid patent.
Microsoft holds thousands of patents. They don't use them to attack infringers. They use them as a defensive counter-attack only, when some other company does attack them on some other patent. (Find a headline that refutes this, I haven't found any.) Many other ethical companies do the same thing. Hold patents as a defensive posture.
There's no reason that Open Source writers cannot do that, or cannot post their concepts to communal patent groups or communal "prior art" databases like these. In fact, they may do one or both, and everyone benefits.
Unless it's very easily searchable, the USPTO cannot and will not keep abreast of the many "prior art" examples on its own. The task is just too large. It is up to people to organize, either by spending the pro-active effort required to review the USPTO's patents, or passively by offering a central searchable database for the USPTO to query. Both now are possible, whereas this was not true a year ago.
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A press release on www.uspto.gov indicates that the USPTO now exposes patent applications before they finish the grant. This makes it possible for third parties to challenge the grants as obvious or covered by prior art.
This was one of my "stock rant" solutions. Since the USPTO is a source of revenue for Congress, it has incentive to grant patents for a fee, and it has incentive to minimize the work it does to consider or invalidate applications.
[
This is a cop-out. What we really need to do is unite and demand reforms from patent systems worldwide. This likely being unachievable, we should lobby the US patent office to drastcally lower the cost of patents for those who do not plan to profit from said patents.
Wouldn't the USPTO be the best registry for software?
A commercial venture, or even a non-profit rganization may collapse, and isn't controlled by regulation, and may or may not meet standards (current and future), and can't guarantee that their database hasn't been comprimised.
This is the job of the USPTO, and they should provide the registration service for free. It would help them get out of their software patent mess.
When I die, please cast my ashes upon Bill Gates -- for once, make him clean up after me!
The provisional patent is intended to allow you to sell your idea to a company withing twelve months, then let them go thru the expensive patent process.
It does have it's drawbacks (many):
For example, you loose your provisional patent filing date if you don't file for patent the within the 12 month period.
I don't think this is the proper solution. Letting it lapse gives you no claim to prior art.
When I die, please cast my ashes upon Bill Gates -- for once, make him clean up after me!
I don't think this is the proper solution. Letting it lapse gives you no claim to prior art.
I think you miss the point. Prior art doesn't have to have been patented - you just need evidence that the prior art exists, which exactly is what the website in question (ip.com) is trying to do. A provisional patent application will serve this purpose just as well - assuming that the application is in fact kept on file by the PTO even after it lapses.
Why not just submit a provisional patent application? Read a description here. The idea is that you submit a provisional application for a patent, and then follow up with an actual patent application within 12 months. For the purpose of establishing prior art, one can submit the provisional application, but then let it lapse.
It's dirt cheap ($75 for a small entity), and it's a pretty much bullet proof prior art evidence since I believe your application will be kept on file by the PTO (someone correct me if this is not the case).
The point of this is the current Patent system does not work. And we've all seen this many times over (see Articles on Amazon, TechSearch, NCR, and Apple). They Parent insane things like One Click Shopping, Aqua Color Theme, and Compression between a Client and a Server.. These people didn't patent this because they were afraid their great new idea would be stolen by a huge corporation, or by another individual, they patented so competition legally couldn't compete and so that they could wait until the rest of the world had popular devices like theirs, with many companies producing them, and then sue/charge licensing fees for them. That is whats wrong. What this place does is allow us Open Source programmers to patent our ideas or at least record prior art so that we don't one day get a letter from Apple saying that we violate their patent on the creation of a text file containing specific code to be run through a preprocessor, compiler and linker to create a distributable executable binary. Sure GCC has prior art.. but thats not the case for all open source projects, it could be very hard to prove..
..There's a-dooin's a-transpirin'
You can use a patent to prevent another company from patenting your idea. Also if a company uses your idea in a commercial application you can sue them. You don't have to make them pay you if it's your patent. I think patenting Open Source software would be good in that you can force people to only make free software with your idea, or open source software. Just think of it as an extension to the GPL. Right now the GPL forces people that use your software to use it in a free Open Source project. A patent on your software will just enforce this idea even more.
For example you could patent say, the binary search algorithm. Then force everyone that uses it to either pay a huge exorbitant fee they can't afford, or open the source of the product for free.
Outdoor digital photography, mostly in New Engl
Suppose I go out and invent the next seatbelt?
Yeah, you can argue all you want that some company should be allowed to have exclusive rights to selling their product, but if a technology (such as my seatbelt example) exists that would be of great use to society, What's a financially challenged inventor supposed to do ?
I mean, what's the motivation for a Mechanical Engineer to shell out $10,000 for a panent that he has no plans to make any money on?
Is a patent even necessary? Can't we just publish this stuff as "prior art"?
Comments welcome.
The Open Source movement would do just as well by having a central repository or library of "prior art" that can be used by the patent office to determine if a "new invention" is indeed a new invention. We need to make it easier to prevent patents on core knowledge; I don't see the point in making more patents when our goal is to prevent patents.
You havn't actually read the article have you? It states...
Specifically the joint venture will give open-source and free-software developers the chance to "defensively publish." For a fee of $20 per document (a significant discount over IP.com's usual $100 fee), software inventors will be able to place their innovations in a searchable software database.
Inventors will be assured that patent examiners will see innovations that might otherwise be lost to unseen Web pages or college papers.
So, if IBM tries to patent something that's been published in the IP.com database, for example, the inventor will have a better chance of beating the company in court.
Any idea placed on IP.com's system will be protected from patenting. Or there will at least be a stronger legal basis to stop patents. And since the database is checked by POs, dodgy patents are less likely to get passed if prior art is registered in the IP.com system.
Essentially this is patenting in reverse. Instead of preventing other people from using your idea without licensing it first, it stops people from patenting it and keeping it to themselves. It forces the concept to be open to all.
Please read articles before commenting on their contents.
Paul Leader
I am not sure this would work. but the idea is that if someone had a patent for the hyperlink system that they discover they had owned since 1979, that if they sat on it and did not develop it or otherwise did not choose to enforce it early and often, that it was a donation to the public domain in fact, if not in practice.
Another angle on this is the idea of different time lengths for patents. The problem is that there is a conflict between individuals and large corporations. Since we are horrified by the prospect of the actions of Large Corporations.
What would happen if MS patented their .NET or their HailStorm technology? (see description here in a spicy article in the Register) - or a large segment of it in many smaller pieces?
One thought is to have patents held by corporations be far more limited in time than patents by individuals. 5 years for corporate p[atents from the time of original filing, not renewable, vs the traditional 15 -20 years for individuals.
This is something we need to think about because the current answers are not Good Enough (tm) to do the job.
"It is a greater offense to steal men's labor, than their clothes"
One solution to the problem of prior art is to require patent applicants to submit a prior art report signed by an independent prior art specialist that could be sued for not seeing the obvious. Such specialists could work in the same way as real estate appraisors work.
please note, the above idea has been patented ;-)
-- look, cheese ahoy!
The Slashdot title and original blurb are a little misleading - this isn't the patent equivilant of copyleft. Noone's patenting software with the intention of keeping the ideas free. They're simply publishing the ideas in a public forum to add weight to the claim of prior art. It's not a bad idea, but I don't know how econmically viable this company is going to be. When you come up with a creative idea for a free software program, are you going to want to pay $20 to get the idea logged, for future insurance against bad patent claims? I'd rather publish the program and have a few users testify that its existance predates the patent. And what happens if IP.com goes under? Where does their database go?
Actually, I did read the article and visit the IP.com web site, and you'll find a minor mea culpa below (which pretimes your message by 20 minutes), where I replied to an earlier correspondent on this matter.
Indeed, IP.com is creating a repository of information for the purposes of identifying prior art -- but they are doing so for a fee.
Not that making money is a problem -- I don't object to a fee per se, but rather to certain assumptions we must make if we are to consider IP.com a valuable resource. IP.com could be a "fishing expedition," attracting nifty new ideas for use by who knows whom. I don't see anything that limits what they can do with the "publications" that appear on their site.
Furthermore, IP.com's repository is based on the existence of IP.com. It will only contain "publications" from those willing to pay $109 for the privilege. I'm not certain this fits with the core beliefs of Open Source. Perhaps we would be better-served a grassroots repository managed by the community, as opposed to a private repository (IP.com) with unknown intent.
--
Scott Robert Ladd
Master of Complexity
Destroyer of Order and Chaos
All about me
HOWEVER, using IP.com implies trust that they (and their database) will continue to exist, and that their intent will remain "noble." Perhaps a grassroots equivelent would be more in the spirit of Open Source.
The main points of my original article stand, however, even if they were somewhat misguided by reading the /. article before visiting IP.com.
--
Scott Robert Ladd
Master of Complexity
Destroyer of Order and Chaos
All about me
No.
In an ideal world, patents promote innovation by giving inventors an exclusive right to profit from their creations; in return for this financial benefit, the inventor must publish a detailed description of the invention, so others can build on it. It is a good system that has been perverted by modern corporate concepts.
Patenting Open source is -- well, patently stupid. By nature, Open Source is published, and it has no direct profit motive. A patent on Open Source does not promote innovation, because innovation exists in Open Source by default!
The Open Source movement would do just as well by having a central repository or library of "prior art" that can be used by the patent office to determine if a "new invention" is indeed a new invention. We need to make it easier to prevent patents on core knowledge; I don't see the point in making more patents when our goal is to prevent patents.
--
Scott Robert Ladd
Master of Complexity
Destroyer of Order and Chaos
All about me
Hi Bruce!
Thanks for your reply.
Fighting patents with prior art databases (especially ones that cost money to enter IP into) is, in my opinion, not as good as fighting patents with patents, or fighting patents with the destruction of the USPTO!!
The GPL fights copyright with copyright. The other battles are generally fought with technology (e.g Freenet, etc) and politics (e.g. - mmm, well..).
It just doesn't seem like IP.com is the right way to go about this.
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And just this morning, I read that our very kind President Bush wants to ensure we have enough arsenic and heavy metals in our drinking water.
God, the flag, Mom's apple pie, and barbarians at the gate, what could be more american?
--
A feeling of having made the same mistake before: Deja Foobar
Wow, there's a shocker. I mean, it's simply unfathomable that there may exist patent officers who aren't Shameless Corporate Bribemongers. In fact, I'd recommend you investigate your sources on that one--that is, if I didn't know that the suggestion would fall on deaf ears...
Honestly, folks. Yes, the USPTO has more than it's share of problems, and there are a number of bad apples in the bunch, but it's just snide to exhibit such shock at the thought that there may exist government employees who want to do their job right.
It'd be like me expressing surprise that there might exist a Salshdot editor that doesn't proselytize every time he or she posts a news article.
Obliteracy: Words with explosions
Stopping stupid patents is something that individuals can do. As an example, several years ago a company obtained a patent on a channel access method for digital radio systems. It turns out that Phil Karn, a ham radio operator/networking guru/author/coder extrordinaire had published an article about this same concept -- even using the same name and acronym for it -- several years earlier.
The patent office hadn't seen it because the article was published in the ARRL/TAPR Computer Networking Conference/Digital Communications Conference Proceedings, a journal fairly well known to hams who do digital radio, but not to the outside world.
Phil filed an objection to the patent based on his published prior art, and the patent was invalidated. Had the patent office known about the CNC/DCC Proceedings, the patent would never have issued in the first place.
The moral is that sometimes, the little guy can win!
If organizations like this are created whose purpose is to actively discourage corporations from making money from innovations, than what is the point of patents? Why even have them at all?
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Know someone who is stealing cable? Report them!
This whole thing seems rather contrary to the open-source mentality. If you patent something, and don't enforce the patent, it becomes void.
Personally, I rather don't care of "patents" on stupid ideas do become void. As far as I'm concerned, the idea is to keep businesses from patenting, profiting from, and then (most significantly) preventing others from using ideas which are obvious or which have existed in the free software community from a long time. If that is your goal, you don't care if your patent becomes void-- you just care that somebody else doesn't get a non-void patent on the idea which they are then going to attempt to use to profit, leech-like.
I think that the copyleft does a fine job on it's own, thanks.
This should be in a FAQ, the memorization of which is required before one is allowed to post (even anonymously) on Slashdot. COPYRIGHT!=PATENT
-Rob
This whole thing seems rather contrary to the open-source mentality. If you patent something, and don't enforce the patent, it becomes void. This means that open source programmers would have to start the same legal bs that big companies use to protect their patents. Bad idea. I think that the copyleft does a fine job on it's own, thanks.
Where's my lobbyist? Right here.