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Defensive Software Patents for Open Source Projects?
jqh1 asks: "I'm the "inventor" of spamgourmet, a fairly un-obvious approach to spam prevention through auto-create/expire email addresses. I'm fully committed
to keeping the software free for all to use. Recently, I've seen other 'patent pending' disposable email address services that are not immediately forthcoming about their own processes. I don't have the time or resources to monitor and challenge patent applications, but I'm afraid that if I ignore them, I'll regret it. Should I seek patent protection for this open source software? If so, is there a way to do it without losing all semblance of an open source project?"
You could licence it freely and place a remark in
your licence that you waive your patent rights.
IANAL, nor am I an Englishman, but I've already
thought about this.
My Karma isn't excellent, damn it! (And
On the other hand, you might just as well go all the way and write a license that includes instant termination upon litigation. This is usually frowned upon in open source circles, but it is commonly used in industry to defend against suits and promote cross-licensing.
Pathman, Free (as in GPL) 3D Pac Man
Get a patent, and the worst you could just give anyone who wanted to use it a free license. Use the same theory as the GPL people do -- use a restrictive intellectual property rights power, in their case copyright, to prevent others from commercializing your work product. Their "copyleft" is merely copyright with unusual provisions, and if you look at their license you'll see the word copyright a dozen times. Perhaps a self-contained license for your patent could also be written and enforced -- ask for advice from the GPL project.
:)
I am not an IP lawyer, nor practicing law here, so absolutely do consult with a specialist. In the state, many lawyers participate in free or nominal fee 30-minute consultations. One hitch it that to actually obtain a patent may cost several hundred dollars (quid) for which you might solicit user donations. Set aside a little for enforcement; the GPL people have lawyers, too.
And, no, getting a patent is not crossing over to the dark side.
In the corporate world, patents are usually held and owned by the company for whom the actually inventor works, not the inventor themselves. For many freelance open source developers working without the umbrella of a corporate master, why not make that company the EFF or GNU for example? The admin of the patent, and any licensing fees (only chargeable for commercial products of course), goes to the EFF/GNU, maybe with a percentage to the original innovator.
If nothing else, the sheer irony of seeing the likes of Microsoft indirectly funding the development of Linux because some spotty geek happened to invent something first would make it all worth while. ;)
UNIX? They're not even circumcised! Savages!
Make your algorithms public (in a way that can be proven - any lawyer tell the best way). Then you have prior art that can invalidate any patent that attempts to prevent this use. Much easier and cheaper than applying for a patent yourself. Just have to do it right - consult a patent lawyer anyway.
In Murphy We Turst
it seems that only unpublished inventions are patentable. In the U.S. of A. this might be different, but in any case anything published more than year ago is not patentable. I wish you good luck with your next invention. And lots of cash too, because the patenting process will cost you.
Richard Stallman once told me he may be interested in getting patents in the interest of free software. You should contact him, to see what he thinks of your potential patents: how to use them best in the interest of free software, and whether somone else than you might pay for them (the FSF ?). It is rather expensive to file a patent application.
Like a lot of tech industries do, you could barter with patents.
Here's the deal,
Some OSS peeps form a Open Patent group,
The patents can be used freely for free(GPL) software or freely by a company if they submit patents to the group.
Everyone else has to pay to use the patents.
GPL is important here because a company could just ripoff some BSD software that implemented a patented algo.
thank God the internet isn't a human right.
I have a few very off the wall , but potentially important 'inventions' that I would like to patent.
But I have to keep them non-public.
They relate to inteligent and self managing systems, which arn't quite pratical for home use at the moment (due to current PC architectures/performance &co.)
Microsoft may already hold some patents in that area with things like longhorn.
thank God the internet isn't a human right.
- Get patent.
If you don't want to deal with steps 2 and 3, assign administration of it to someone who will. (A Free IP Foundation [FIPF?] would be ideal here.)
- License it under Intellectual Property GPL (see below).
- Don't profit. (This is, after all an open source business model.)
Intellectual Property GPL [IP-GPL] (Proposed)Any serious use of this license should be accompanied by a written admission that the patent owner is behaving moronically.
This license does not follow copies of the binary if they are provided without full sources as stipulated by this item, even if such copies are permitted by the code license. All entities using or distributing such a release are in violation of this license
The intent here is to prevent the NOSE from using their patents offensively against open source projects. The time is limited so that the FIPF can re-assess whether the NOSE has begun to use patents against the open source community. This also allows a NOSE to negotiate a patent swap for some of their technology without giving up all patents, while the FIPF retains the right to re-evaluate whether the NOSE has begun behaving badly.
IANAL - but I work at an intellectual property publishing company (around a number of lawyers) so I've had to learn quite a bit about IP law and practice.
;) - but I think you'll find some useful information about this topic.
First off, we need to clarify what patents DO and DON'T DO for you.
The only thing a patent really does for you, is gives you the right to exclude others from using an invention. The way in which you can exclude them is by (civil) lawsuit (or threat of a lawsuit). There is NO reason to obtain a patent UNLESS you want to enforce it by excluding others from using an invention.
If all you want to do is ensure your/anybody's right to use an invention, you want to make sure future patents aren't granted to others - or failing that - that if they are, you have adequate proof that the invention was part of the public knowledge prior to the patent application which gives you the right to use it.
To do this, you DON'T need a patent yourself. All you need to do is "pollute the waters" by publishing prior art. In a perfect world, if a future application with similar technology crosses a patent examiner's desk - he'll find your prior art and reject the patent. Since prior art isn't always found, a patent may issue, but that prior art can be used in your defense when you are accused of infringement by others.
Publishing information for the express purpose of adding to the pool of 'prior art' is a process used by lots of companies, and is commonly known as 'technical disclosure' or 'defensive publication'.
At the risk of sounding like a corporate shill (bye bye karma) - you can read more information about how to do this on the website for the company I work for. (I wrote most of it, so I hate repeating myself here).
Whether you use the services (Prior Art Database) there or not doesn't matter to me - I don't get commission
It really sounds like technical disclosure is what you want. You may still get a cease and desist letter from somebody in the future, but you'll have evidence to back up your ability to use the invention yourself. That is all that having a patent would do for you as well. But unlike a patent, technical disclosures are much cheaper to produce, and should provide the protection you're looking for.
Recently, the Legal Department has considered how best to approach issues of searching for other companies' patents while developing new products. The handling of this particular issue can truly save or cost the company hundreds of thousands of dollars, or more, in connection with legal issues related to patents, because once you have knowledge of a specific patent that may be an issue, this knowledge can create significant legal burdens and duties.
XXX has made a significant investment in intellectual property and has a corporate policy of respecting the intellectual property rights of others. To that end, if you know of a patent that you believe presents an issue with respect to a project that you are developing, please immediately contact XXX in the Legal Department.
The general policy of XXX is NOT to search for patents. Over 6 million patents have been issued by the US Patent and Trademark Office. Patents are legal instruments that require legal expertise to understand. Mere knowledge of any given patent may require that XXX conduct a time consuming and expensive legal investigation to understand the rights conferred and to ensure that our products are clean. Searching for patents from among those 6 million could taint our products and engineers and create SUBSTANTIAL legal obligations and expenses for XXX. Therefore, please do not search for patents in an effort to look for unknown patents. On the other hand, if you do already know of (or hear from a competitor about) a specific patent that you believe may arguably apply to one of our products, contact XXX in the XXX Legal Department to let him know.
(only chargeable for commercial products of course)
I think you misunderstand the GNU project. This idea goes against the basic ideal of the GNU project that everyone should have the same rights to use GNU software. If you descriminate against any group, including commercial entities, then the GNU project really won't have anything to do with you. GNU has nothing to do with promoting non-commercial software, and you will never see the GNU project support a license that descriminates against commercial uses.
I've had enough abrasive sigs. Kittens are cute and fuzzy.
OK that's a funny sentence. Open Source (No Money) != Drooling Lawyers.
Just wondering (after I created an account)
b led\. 999\.$2@spamgourmet.com/g
what if some spambot has a rule that has
s/\w+\.(\d+)\.(.\w+)@spamgourmet.com/spamena
would this mean the user is buggered?
Genius doesn't work on an assembly line basis. You can't simply say, "Today I will be brilliant."
The GPL itself discriminates against commercial uses (i.e. a company MAY NOT distribute my software without the source.)
Nice deliberate lie.
"God is dead." - Frederik Nietzsche
I would have to switch to the "better protection" mode where the throw away addresses need a visit (by me) to spamgourmet before they are effective.
I have used this service for a long time (1998, I think?) and I have yet to have someone get past the "no maintenance/no-brainer mode."
Spamgourmet is the best anti-spam tool I have encountered.
"God is dead." - Frederik Nietzsche
It may have been an attempt at humor for a Microsft employee, but it is not INFORMATIVE!
Without the patent, a company can commercialize the technology even if it is protected by the GPL. They just can't copy the code and call it theirs, but they can re-implement the technology in new code and sell it as theirs. After the patent expires, they are the same.
It gives to a stick to trade with, If somone infringes your patent they may well allow you to use one of their patented ides, instead of going through the courts.
thank God the internet isn't a human right.
This is what companies do all the time,
If a few companies hold key patents then they get togeter and agree licensing terms (often free)
thank God the internet isn't a human right.
What are you talking about? You can use and distribute the software however you want, including commercially. Everyone is bound by the same terms and conditions as everyone else. Treating everyone who wants to distribute it under the same terms and conditions is what makes it not descrimination.
I've had enough abrasive sigs. Kittens are cute and fuzzy.
To my ear, it sounded like the writer is not afraid of other people patenting his ides -- which as I understand it prior art can torpedo -- but of other hijacking his open source ideas to build their products.
Is there a fairly straightforward way to monitor patent applications so that the writer could bring prior art or the patent to the examiner's attention? I know many of the records are now online, and have flipped through them myself out of curiosity.
I'm new to this stuff and would welcome clarification.
The fact that a company bases it's business around the sale of software is a choice made by *that* company. That has nothing to do with discrimination.
The company is still free to sell the software (yes, they have to include source code with it), or sell support and services around it, or do a multitude of other things. In fact, the GPL explicitely grants permission to sell GPLed software.
All the GPL does is prevent a company from using something someone else wrote in a way that the original author doesn't approve of (under the terms of the GPL, which they've licensed their code under). If it wasn't under the GPL, you wouldn't (under copyright law) have a right to do much of anything with it.
The GPL is very uniform and non-discriminatory. Everyone has exactly the same rights of use under it, regardless of whether it is an individual, a corporation, or being used for non-profit, for profit, or for personal use.
You say, "a company MAY NOT distribute my software without the source". . . um, hello? If it's your software, then it's entirely up to you to determine the license it's released under. You don't have to GPL it. If you do, then yes, some other company has to release the source code if they distribute the software. . . that's the agreement they're accepting when they decide to distribute software that someone else has written.
There was no lie.
I'm not sure whether your comments were deliberately misleading, in an attempt to discredit the GPL, or simply caused by ignorance and lack of understanding about the definition of 'discriminate'.
Topher
I don't remember the details, but 2-3 years ago, there was a guy with three or four patents related to either imaging or fonts. He explicitly granted a license to use the patent to anyone who wished to use it in a program that was covered by one of a few eligible Open Source licenses, including the GPL.
This doesn't count as non-enforcement - He has specifically granted the license to certain people for use in certain programs. (i.e. if you want to write a GPL program, feel free to use the patent. If you want to use it in a closed-source program, you'd better negotiate a licensing agreement to use the patent.)
retrorocket.o not found, launch anyway?
Prior art must be public.
To make software prior art public:
You now have Pretty Good evidence that you were in possession of those bits at that time. You can back it up with a U.S. copyright registration ($30 at copyright.gov). Proof that you had actually published the package at a given time is left as an exercise for the reader (reply to this if you know how).
Will I retire or break 10K?
Somebody wasted a moderation point moderating a comment that begins with OT: as off-topic?!
In order to get moderators to ignore your comment and M2ers to mark any moderations as (Unfair, Redundant), you're supposed to put (OT) in the Subject, not just the body.
If you have published your source code, than anything patentable (as opposed to copyrightable) is already in the public domain, and hence cannot be patented. This precludes you from patenting it, but it also precludes ayone else from doing so unless they can prove that they were using the idea before you published. So if you are truly open source, rather than free distribution of executables, you have done everything you could do simply by going open source.
What actually constitutes publication is perhaps a more difficult question, and IANAL. But I would have thought that a SourceForge project would be easily enough for the courts to accept as publication.
Consciousness is an illusion caused by an excess of self consciousness.
No I can't remeber who, but there was a story kicking around about someguy, who asked M$ if Longhorn? would be used for DRM, M$ said no. He then went and took out a lot of patents on using Longhorn for DRM.
I'm fairly sure this was real and not part of my weird imagination.
thank God the internet isn't a human right.
If you have prior art, you have prior art, and future patent attempts should be legally invalid.
If they are not, a defensive patent will do squat for you anyway. Face it - in a War of Lawyers, Microsoft et all field the superior armies.