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Understanding (and Avoiding) Software Patents?
An anonymous reader asks: "I'd like to write some Free backup software, but this area is mined with patents. I downloaded one and tried to understand it, but the 'claims' section (arguably the most important part) is made up of utterly incomprehensible patentese, and I can't afford to hire a patent attorney to help me understand it. Are there any free or cheap ways to learn enough about patents to understand them, so I can figure out exactly what is patented and therefore avoid it?"
"How different does my software have to be in order to be non-infringing? The patent I tried to understand is Dantz's 5,150,473. Many, including Slashdot readers, have said what this patent covers, but from reading the patent itself, I would never have guessed. Also, there are lots of other patents to understand and avoid, so I'm looking for general information on how I can unravel it all into language I can understand."
you can't know if there has been some patents applied that haven't been published yet.
it's impossible for you to learn of all the patents that you might have to deal with.
the solution? just write the fsckin software, if someone complains then take it out.
world was created 5 seconds before this post as it is.
If you aren't making money.
Perversely, it's not a very good idea to actually do a patent search before lunging into your neat new idea. Should you actually find evidence that your invention was close to patented technology and that fact comes out in court, you will be accused of violating the patent deliberately.
If you never looked, on the other hand, you just didn't know about it and may have violated someone's patent as a result.
Further, you'll only be subject to serious trouble on the patent front if you're wildly successful (i.e. harming the patent holder's market share). In that case, there ought to be enough interested parties with money to actually handle the challenge.
I am not a lawyer, but I've talked to a few on this exact subject with the exact same question.
Regards,
Ross
In addition to there simply being too much to read, in the US, if it can be shown that you knowingly infringed a patent, the amount of damages you can be liable for is trebled (x3).
You're much safer in your ignorance.
Just write the damn thing, I don't see what's wrong with it being patented
If this project is a commerical one, and you can't afford to provide proper legal protection for your product, I'd recommend abandoning it -- there's no way you'll ever make a buck on it. On the other hand, if you're doing an open source project, I'd recommend that you just go ahead and do it, and not worry about legal issues. If your product's any good, then it will develop a following that will help you fight any patent infringement suits. Remember, the patent holder has to show that you're infringing, and that his patent is valid.
Do what Linus does: don't read patents.
"Technical people are better off not looking at patents. If you don't know what they cover and where they are, you won't be knowingly infringing on them. If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git."
J'aime mieux les méchants que les imbéciles, parce qu'ils se reposent. -- Alexandre Dumas
The way I have attacked this in the past is to go through it sentence by sentence and translate it back into English, keeping a glossary of things which seem to make sense in context.
From your example: "The archive format includes the transfer of data to an archive media member, which archive media member can alternatively be addressable or sequential memory and can be recordable in either a rewriteable or right [sic] once manner."
Glossary: Archive media member - a tape or disk. (This is backed up by the fact that these may be sequential or "addressable" (i.e. random access)).
So, in other words, "The archives are stored on tapes or disks, which may be rewritable or write-once."
This is, of course, a tedious and laborious process. (Just imagine, however, being a patent lawyer and having to actually write this stuff for a living.)
Note well that, if the CIID passes, us software developers in Europe are going to have to learn to do this much more often. Here's an obligatory link to the FFII for the benefit of anyone who's been on Mars for the last 6 months.
OK, here's an idea. How about an open directory of patent translations?
Once you've translated a patent into English, you would upload it to the directory for others to use. They would be available under something like a creative commons license, with a feedback/rating system, standard disclaimers that original legalese has priority over the translation (of course), and that translations are supplied for convenience only.
The web interface could optionally display the original and the translation side-by-side, aligned by paragraphs, so you can easily cross-check. There should be a simple way to post/suggest corrections.
NOTE: This posting consitutes prior art on this concept. You may not patent it!
ASIDE: The method described for translation is basically the same as that described by Richard Feynman for dealing with obtuse english. Here's a quote:
"There was a sociologist who had written a paper for us all to read - something he had written ahead of time. I started to read the damn thing, and my eyes were coming out: I couldn't make head nor tail or it! I figured it was because I hadn't read any of the books on that list. I had this uneasy feeling of "I'm not adequate," until I finally said to myself, "I'm gonna stop, and read one sentence slowly, so I can figure out what the hell it means.
So I stopped - at random - and read the next sentence very carefully. I can't remember it precisely, but it was very close to this: "The invidivual member of the social community often received his information via visual, symbolic channels." I went back and forth over it, and translated. You know what it means? "People Read."
(From "Is Electricity Fire?" in "Surely You're Joking, Mr. Feynman".)
Sean Ellis
Follow OfQuack's antics on Twitter.
...work to get rid of them. Seriously. There is absolutely nothing you can do to protect yourself from software patents, other than this.
OK - so it's a bit drastic, but (thankfully) US law doesn't yet apply worldwide.
Here's a question for the lawyers and not-a-lawyers with more time for legalese for the rest of us - if you're physically resident in one state, but only ever store and write programs in a second, and publish (whatever that means) in a third, which law applies?
Wouldn't it be funny if patent refrencing software was patented... hahahhahahaha... oh wait...
Good lord I'm evil.
Dude, that's like, totally bogus! Try using the Fish on it... Maybe its in like, Polish or something...
Seriously, it would be interesting to see the technology behind Google Translate or AltaVista Babelfish applied not only to proper languages but also to specialized jargon and dialects: Legalase, Technobabble, maybe even Diner.
Hmmm, imagine using the fish to translate "From Legalese to Engrish" *cringes*
If you read the patents and infringe, that's called willful negligence. Your intent and so on is almost meaningless.
If you don't have the funds to hire a patent attorney, it suggests this is pretty small scale. In which, just move forward. You're probably small enough to fly under the radar. Even if not, you're most likely going to get a cease & desist letter.
There have been a few cases that source code is speach, i.e., in relation to publishing encryption code. If any of those cases held up, then it may also apply to patented algorithms. Therefore if you only publish source code then it would be up to the person compiling/running the code to check for patent infringements. Of course it would be nice if the system actually worked like this...
The answer. It depends. Choice of law is a very complicated subject. Much litigation can occur before the parties even get to the merits of the case. The most likely answer is that the lawsuit will be filed in the state of the plaintiff, although there are jurisdictional questions there. In addition to state law, the might also be overlapping federal law. There is just no simple answer. Choice of law and erie doctrine are a few things to search on.
> If you never looked, on the other hand, you just didn't know about it and may have violated someone's patent as a result.
IAAL and I can tell you that in tort law, ignorance is not a viable defense. This is basic tort law and any lawyer who passed bar should know this.
Besides, if you spend all your time looking for a patent you mighg be violating, you'll not get any coding done.
A firewall can not protect you from yourself. Turn off what you do not need. Do not use the firewall to do your work.
I'm not sure if you're talking about US states here, or "states" as in nations.
If it's the former, there is no state patent law, as all patent law is federal (as is copyright law, both by the U.S. Constitution). Any patent suit in any state will be brought under federal law, so the states involved are largely meaningless.
If you meant which country, it could be more than one, or even all three, and it would depend on the laws of each state. Of course, there might be conflicts of law rules in one or more that would be used to decide which law applies, but that decision would be so context-sensitive that it couldn't be answered in a general way here.
Just clone something at least 20 years old. Bring it up to modern standards by adding translucent drop shadows and a few gratuitous memory leaks. This is the method used by all major software publishers and it works without fail.
Two patent applications is not the same thing as being obvious. Ethical inventors will not try to patent obvious inventions.
There is an article about "The Anatomy of a Trivial Patent" written by RMS. It may be a nice introduction to the topic if you want to read more complex patent texts.
Or for a more temporary solution.... move to Europe
Kingdom of Loathing (www.kingdomofloathing.com) Addicted is me
Even better, if you find your software infringing,
pass its maintenance to someone living in the country where SW patents are invalid!
Now before you take me outside and give me a good (and possibly deserved) kicking this was for a fairly involved process, and not for something blatantly obvious and oft-used (isnot anybody?)
Despite writing large chunks of the text after the legal department had their way with it I can't tell you what it does.
Not out of fear, or nondisclosure or other legal hurdles - it's just but I don't understand a damn word of it!
What do these legal teams smoke in their breaks?
Two points:
..." and you're bound to miss something off your list. Similar wording like "fixing means" would be replaced by "glue, screws, pins, nails, clamps, ...". I think it's easier to learn the generic wording.
1) You might be infringing crown copyright (or equivalent in your jurisdiction) by doing this as you are creating a derivative work for which you do not hold rights!!
2) The reason it says "data storage means" (or whatever) rather than CDR is that it has been broadened. It becomes ridiculous to replace every "data storage means" token with something like "CDR, CDRW, DVDR, DVDRW, Tape, Memory Stick,
Hope that this is a worthy "electronic communication means not limited to bulletin board postings providing aid or assistance by virtue of information therein held or otherwise". [transl: post that helps].
pbhj
I agree that there may be a copyright problem here. A translation is a translation, regardless of whether it's French to English or Patentese to English.
However, for ease of reading, it should be obvious that specific instances of things are easier to deal with for most readers. Granted, a "sequential archive media member" isn't always a tape, but that phrase has no immediate reference in people's minds - they have to laboriously unpick it and make a new mental symbol to represent it. "Tape" may not be completely representative, but it fits into the user's existing mental model better and so speeds understanding.
Sean Ellis
Follow OfQuack's antics on Twitter.
as all patent law is federal (as is copyright law, both by the U.S. Constitution).
Just a minor quible but the constitution, while providing the basis for federal patent and copyright law, does not in and of itself prohibit states from having patent and copyright laws. What does, in the case of copyright law, is Title 17 section 301 of the US Code which reserve to the federal government the right to enact copyright law. I'm sure there is something like that for patents, I just don't know it off the top of my head.
Niels was a PhD candidate at Univ. of Mich., and would drive the 45 minutes or so to Canada to work on the crypto code to avoid the US restrictions.
I'm assuming by doing the work in Canada, even though he was living in the US, Canadian law applied. You could ask him for more clarification if you'd like. Just google his name. You'll get a lot of hits, especially since he works there.
Just because you're paranoid, it doesn't mean that they're not out to get you.
While that's true that it doesn't explicity give Congress exclusive power to do so, the fact that Congree can write such a law comes from the fact patent and copyright power are given in the Constitution and from the Supremecy clause. Otherwise, Congress would never be able to carve out the law just for itself in the first place.
Software sucks. Open Source sucks less.
Without patents the producer (or the industry collectively - a big win over the patent way of doing things) would employ someone to come up with such inventions. Someone who had a track record of such creativity in the past. So even if a given invention comes from outside the industry, that person will be rewarded by improved prospects of future employment. So the money-for-creative-labour side works itself out, and now everyone gets to use the fruits of the creative labour - so its usefulness is increased, which results in more demand for creative labour and hence more money flowing in in the first place.
Patents do not encourage innovation. That is a myth. They only ever hinder it. Patents were never intended to encourage innovation. They were intended to encourage disclosure. For that purpose they probably work OK, but awarding a patent to something that could not feasibly be used in secret (like an algorithm, typically) doesn't encourage enclosure (because it was inevitable) - it's just an unnecessary obstacle to technological progress and further innovation.
In the USA "crown copyrights" don't apply as they simply don't exist. If it is a public document then it lacks a copyright. That may not be true for some state government records, but for U.S. Federal publications they are all in the "public domain", including patent records. The trick is simply to get access to the records in the first place.
That said, it would be futile to try and do a commentary on all patents in the USA, as the USPTO is willing to give you a patent for just about anything that can be written down... far more than should legitimately be given out. It is this volume that would make any community effort to annotize patants to be useless except on the most controvercial patents.
That, and the fact that such "translations" into English would be largely worthless, as changing the language would necessarily mean changing the scope of what the language covers. Reading a "plain English" translation of a patent would not tell you claim scope--the only thing that matters on a patent. The scope is determined exactly by the language used, as defined in the body of the patent. Using alternative words would change that scope. One would be ill advised to rely on such a translation.
Patent law covers making, using, and selling the patented invention. Anywhere any of those acts took place, that law would apply. If you write it in Canada, you "made" it in Canada. Canadian law applies to the act of writing. If you sell it in the US, US law covers the sale (but not the writing, which occurred in Canada).
A more difficult question: What if the act of "using" the patent occurs in two different countries? This was in the news recently. A patented process could rely on two different servers, located in two different countries. Anyone know anything about this?