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?"

Comments

IANA(P)L, but

[Kickasso]

it seems that only unpublished inventions are patentable.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.

Intellectual Property 101

[ip_vjl]

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.

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 ;) - but I think you'll find some useful information about this topic.

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.